Daniel K. Mayers v. Peter S. Ridley

al., Appellants et K. MAYERS Daniel et al.

Peter S. RIDLEY

No. 71-1418. Appeals, Court

United States Circuit. of Columbia District 1, 1972. March Reconsidered Washing- Waggoner, Michael J. Mr. June Decided B. C., Jack ton, whom D. Messrs. Washington, Temple, Ralph J. Owens brief, appellants. C., for D. were Kuemmerling, Corp. Asst. Mr. Ted. D. Columbia, for the District Counsel Murphy, Francis Messrs. with whom C. Barton, Counsel, Corp. and Richard W. brief, Corp. Counsel, on the were

Asst. appellees. En Banc Reconsideration On Judge, BAZELON, Before Chief WIL- Judge, MILLER, Circuit BUR Senior K. TAMM, WRIGHT, McGOWAN, ROBINSON, LEVENTHAL, MacKIN- WILKEY, NON, Circuit ROBB Judges, en banc.

PER CURIAM: group Appellants, of Co- of District representing the class lumbia residents of homeowners whose is burden- covenants, ed instituted this enjoin suit Deeds the Recorder of filing accepting from require and to Record- future existing er to affix a sticker each liber stating volume that restrictive covenants They found null therein and void. injunction preventing also asked for an providing copies instruments on file unless a similar no- copies. tice is attached The Dis- complaint, trict Court dismissed their F.Supp. three- judge panel of this affirmed that court judgment. On reconsideration en banc judgment of the District Court we now reverse.

Reversed remanded. WRIGHT, J. Judge, SKELLY Circuit BAZELON, Judge, with whom Chief 631 ROBINSON, stating sticker on each and SPOTTSWOOD W. liber volume that concurring: Judge, join, III, covenants found therein are Circuit restrictive void, injunction null and for an and group Appellants in this action are a preventing providing from repre District of residents of Columbia copies of instruments file unless senting of homeowners the class whose copies. similar notice is attached to the illegal1 property racial burdened When District Court dismissed their They in covenants2 instituted suit this complaint, appellants argu renewed their enjoin order of Deeds the Recorder three-judge panel in ments this A court. accepting filing for such covenants held that the District Court should be Moreover, they in the seek cer future. affirmed, whereupon majority of the tain corrective measures which would judges of this court voted reconsider approval withdraw state from restric the case en banc. We reverse. already Specifi tive covenants on file. decades, For cally, Recorder’s office has for ask a declaration that accepted filing these rights covenants their been violated public maintained them Ap- records.3 of covenants, racial or an pellants requiring der legiti- contend this affix official gets years ago Shelley impression Kraemer, just 2. One an Almost 25 v. of how nox 1, 836, by perusing ious these 334 U.S. 68 S.Ct. L.Ed. 1161 covenants are 92 some examples judicial (1948), provided appellants’ of in declared enforcement complaint. provides restrictive racial covenants in One land deeds covenant part Shelley years “no of unconstitutional. Five said land after shall be sold to any negro person Minton, speaking Mr. Justice for a or ma African descent jority negro or with or Justices in Barrows v. African Jack blood their son, 249, 259, Appellants’ 1031, complaint veins.” 346 U.S. 73 3. An promises 1036, (1953), thought part L.Ed. “[n]o hereby dealing conveyed unworthy used, with land “the shall ever covenant occupied by, sold, demised, “closfing] gap transferred, or its last stand” and conveyed unto, covenant, universally for, leased, the use of this or in so trust or rented, given, negroes, any per condemned Shelley or courts.” But while or persons negro judicial son or Barrows outlawed en blood or extrac any tion, person covenants, race, or forcement of it re the Semitic quired legislative origin, description or action to blood make the cove illegal. Armenians, nants shall be deemed themselves Title to include Thus VIII Jews, 1968, Hebrews, Syrians, of the Fair Persians Act ex 42 U.S. 3604(c) cept that; paragraph §C. makes it this shall not be unlawful * * * make, print, any partial occupancy publish “[t]o held premises exclude notice, statement, advertisement, by, with domestic servants.” Ibid. to the sale or rental These are not ancient documents unearth dwell ing any forgotten preference, past. ed from indicates limita a now racist tion, They race, or discrimination are contained in modern in based on color, religion, volving today occurring origin, transactions national or an land city. preference, intention to make such limitation, or discrimination.” Since sidelight case, is, by very an restrictive ture, As ironic covenant na early preference note that one of the District of a statement of racial regard dwelling, to the sale of a Columbia Recorders Deeds was Fred- is now Douglass, freed slave unlawful erick include Although if leader. our deeds even no effort is to enforce nowned abolitionist made whether them. research fails to disclose restric- United States Lake Lu v. Cf. during N.D.Ohio, Co., cerne Land tive covenants were issue Civil Action Douglass’ post period, C69-885, 19, (consent auto- No. der). War Jan. or Civil biography Moreover, he re- does make clear that lest doubt remain throughout proposition, 45, 3(b) as to this mained foe of racism Art. a staunch Regulations “The office Re- [of the Police District his official tenure. * * * my pen neither fettered corder] makes it to “[i]n of Columbia unlawful my my nor silenced people. voice cause clude in the terms or conditions of ** * My midst, first, cause transfer of an interest any clause, real always, last, in office or out whether condition or restriction” color, office, race, origin. the black man was and the basis of or national County Board of g., School deeply e. v. agreements Griffin so of racist mization 234, County, 377 U.S. Prince Edward private discrimina the state involves (1964); L.Ed.2d process 84 S.Ct. clause due as to violate tion Cooper Aaron, 78 S.Ct. Bolling U.S. v. See Fifth Amendment. (1958); Barrows v. 3 L.Ed.2d 5 74 S.Ct. Sharpe, 347 U.S. 257-259, Hodge, Jackson, Hurd L.Ed. 884 Cf. 1031, 97 L.Ed. 1586 847, L.Ed. 1187 334 U.S. argue, appellants (1948). Moreover, emanating governmen- from evils con actions are housing even if the Recorder’s acceptance discrimina- tal of making stitutional, they entail society. permeate tion entire Gen- our of a publication or statement notice of a governmental participation of erations respect preference to racial with yielded zoning in racial a bitter hence, dwelling and, are un sale of a schools, segregated harvest of the Fair under VIII lawful Title unequal employment deplor- opportunity, supra. Housing note Act of 1968. See overcrowding cities, able in our center Finally, appellants point local statutes to virtually polariza- intractable accept permit to Hearings tion. See Before Subcom- “affecting title those documents Housing mittee on and Urban Affairs estate,” ownership 45 D.C. or of real Banking on Senate Committee 701(a) (1) (1967), and Code which Currency etc., § Cong., on S. 1358 90th forbid him instruments Sess., (1967); Report 1st 46-47 * * * * * * agree “not executed Advisory National Commission ably to law.” 45 D.C.Code § (N.Y. Civil Disorders 244-245 af Since restrictive have not covenants paperback 1968). Times ed. is too ownership fected title or real es “the argue day late in the to it is burden- Shelley Kraemer, tate” since 334 U.S. wrongs, some to correct these historic (1948), 68 S.Ct. 92 L.Ed. 1161 government or that lack officials statu- “agreeabl[e] and have not been to law” tory authority to do so. These passage Housing since Fair Act of arguments place sorts of no “have 1968, appellants argue, Recorder ex jurisprudence striving of a nation statutory ceeds his mandate when he ac rejoin race,” to the human Jones Al- cepts filing. these documents for Mayer Co., fred H. 449 n. 2186, 2208, 20 L.Ed.2d 1189 response, appellees to meet decline (1968) (Mr. Douglas, Justice concur- appellants’ argument. constitutional In ring), accept peril and which we at the stead, they that exclusion of contend re incurring a racial holocaust. strictive required Act, Housing the Fair that such an ex Appellants’ Statutory Arguments I. clusionary would be rule burdensome beyond administer the Recorder’s Housing A. The Fair Act statutory authority, any and that case appellants Title suffer no harm VIII of the Fair Act of because of the void 3604(c) For the makes covenants. reasons U.S.C. stated below, unlawful, appellees’ argu exceptions, we find each with certain unconvincing. Although make, publish, ments they print, or “[t]o or cause can made, published notice, be separately printed, any attacked respec on their or merits, advertisement, tive observing statement, it is worth at the aggregate dwelling outset the sale or rental of amount limitation, no preference, more than sort indicates lame excuses justice color, race, denial of racial discrimination based which the Supreme ligion, rejected long ago. origin, See, Court or an inten- national black, ships.” Douglass, —not because he F. Life and because he Times man, subjected (Crowell-Collier Douglass is a and a man Frederick in this country peculiar wrongs 1962). ed. and hard- preference, pose tion make limita- office is to ex- tion, or discrimination.” hibit so deeds convenient fashion possible to disclose or reveal clouds on accompanying opinion dismissal In its sure, the chain title. To Re- complaint, District appellants’ “publish” corder does import” “plain Court found that newspaper publishes the sense that a than prohibited more no these words copy. must, course, pre- news But we indicating advertising a ra- conventional carefully sume that the statute draft- language can- preference. “[T]he cial part ed and that no itof redundant. embrace reasonably not anything tortured If the had framers intended to limit respect to due more.” With publication clause preferenc- of racial Corcoran, us that Judge clear to it seems es in newspapers, prohibition required “torturing” extract no “printing” notices and statements would rigid result from more than have been pur- sufficient serve their language. the Act statutory On its face pose. against proscription The additional publishing prohibits making “no- or “publication” should therefore read be tice, statement, indi- or advertisement” broadly more to bar all for mak- devices (Emphasis cating preference. a racial ing public preferences racial in the sale added.) words “notice” Unless the estate, they real whether or not in- surplus- “statement” are to treated as be printing volve process. Cf., g., the e. pro- age, they Act mean that the must Publishing re Newspa- Docket Local communications hibits at least some per, 48, 49, 266 Mo. 187 S.W. 1175 which cannot be classified as advertise- (1913). And when read, the clause is so history Although legislative ments. the scarcely it can be doubted that the Re- sparse, it indicates be- this section is r publication corder’s of racial covenants yond that, doubt as the words themselves squarely falls statutory pro- within the suggest, Congress beyond go intended to hibition. advertising to reach other sorts “no- See, tices” and “statements” as well. Finally, the effect is limited statute’s g., Hearings e. Before the Subcommit- printing making, publishing no to tices, Rights tee on Constitutional of the Sen- statements advertisements Judiciary ate Committee on S. “with or of a the sale rental etc., Cong., Sess., 89th 2d at 1105 dwelling pref that indicates [racial] course, purpose Of the main Appellees argue erence.” stat that the give a restrictive covenant is to notice ute is directed at the indus estate real preference. of a racial And even if try, with which the no con Recorder has word “notice” is defined in its narrowest agents, say, Real nection. estate possible sense, surely fall by printing pub violate the statute or category within the broader of “state- lishing racial re convenants “with ments.” * * * spect dwelling,” to the sale of a merely whereas the Recorder records the Nor can be doubted that when the racial public covenants in the record. Recorder files restrictive covenants he is, course, nothing But there “make[s], print[s], publishes]” [and] statute which limits effectiveness to might these notices and statements. agents. real estate “Unlike other sec argued prints that the Recorder Housing tions of the title, Fair § covenants when he them to causes (c) provide any specific exemp does not reproduced purposes preservation designate persons covered, tions or inspection. But broadly, more * * * applies rather on its face publishes certainly by collecting them ‘anyone’ printing illegal publishing or them in a manner that facilitates access advertisements.” United Hunt States v. prospective them buyers. Black’s er, Cir., (1972) 459 F.2d Dictionary (4th Law 1951) at 1396 ed. (footnote “publication” omitted). defines exhibit, pro The statute “to dis- play, disclose or pur- reveal.” preference The whole hibits notices racial judicial acquiring. can take no- however real estate We the transfer including, pub- Re- published, presumably, tice of fact visit to the ingredient public office an in vir- corder’s records lication in the tually every estate transaction “with real District of Columbia. city that, virtually conversely, obviously spect” modifies clause everyone “notice, statement, who of- advertise- visits words immediately preceding fice is involved in the real mar- it in the estate ment” “make, say publica- ket. To that the Recorder’s than words statute rather type tion of deeds is print, publish.” It unconnected with describes ** * dwelling or rental of prohibited, mode “sale notice [s]” contrary publication. A overlook the sale author fact such a reading mean that ineffective as a bona of the statute would purchaser publish a paper in a unless the deed record- homeowner could news- fide ed. offering See an D.C.Code advertisement to sell indicating fundamentally, preference, More such a his house restriction racial statutory language ignore newspapers since are no more arm of day-to-day industry responsibilities the real Re- Re- estate than clearly pointlessly corder’s office and Yet held the courts limit corder. applicability newspaper that ing the Fair advertisements indicat- Act. preference within the fall examination a careful textual Thus prohibitions See, central Act. 3604(c) clear that makes 42 U.S.C. § g., Hunter, supra, e. United States activity its ambit. within falls Recorder’s F.2d at 210. thinks of the Whatever one unnecessary upon the words rest It is to relationship between the Recorder pur however, alone, since statute surely industry, real estate it cannot yields provision analysis posive of the racially be doubted that restrictive cove- True, there precisely result. the same purpose nants have the in- effect of legislative history nothing tend in the dicating preference a racial “with re- ing support toor refute to either * * * spect dwelling.” to the sale of a arising language that from the inference It that follows the Recorder’s actions prohibits the Act statements regard pro- with these to covenants are emanating Record preference from the they hibited the Act even if not do likelihood, con In er’s all few office. directly themselves involve the “sale thinking gressmen their even addressed * ** dwelling.” of a particular problem. But no court assuming arguendo Congress spe Moreover, that must has held that ever respect” cifically clause intended “with was indicate how statute should modify “make, pub- applied every judi print, or the words case before lish,” ciary go ap describes the business of still think the clause can about plying Paul, think it be- U.S. the Recorder’s conduct. We yond it. Daniel v. 395 virtually dispute 298, 307, 1697, 1702, that all of the L.Ed. 23 including pub- example, Supreme activities, 2d 318 for covenants, recognized “most dis lication Court Congress regarding are undertaken “with sale the cov cussion * * * * * * Rights dwelling[s].” erage It II of Title 1964 Civil [of suggest reality spectator places blinks that the official en Act] focused functions unrelated tertainment rather than recreational Nonetheless, transfer and real held the sale of estate. areas.” Court applicable The Recorder’s office is not a museum Act to a lake club boat with facilities, ing remarking dancing where come to old scholars examine coverage curiosity. is, Act’s out should rath- disinterested objects buyers primary er, place Con prospective “restricted where gress’ agents purpose easily quickly concern” since the their can de- daily law “to termine the the title remove affront soundness of

635 discriminatory government vision benefit of humiliation involved ostensibly private If at officials. individuals to facilities access denials public.” tempted publish general Id. at 307- or circulate racial open covenants, activity clearly their 89 S.Ct. 3604(e). su violate Section See note 1 clearly Congress stated Similarly, pra. opinion Yet of the Dis under the purpose Fair Court, government trict it is a because provide, constitutional within “to Act is statutory official violates the com who housing throughout limitations, for fair activity mand his is somehow insulated 3601 42 U.S.C. § States.” the United judicial position control. This 3604(c) Reading to for Section controversy the old “state action” turns frustrating Recorder from bid the Rights Ever its head. the Civil since gov authority by placing purpose century were almost a Cases decided illegal housing discrimi behind ernment ago, thought necessary it has been with, if not nation is at least consistent degree show some of state involvement compelled by, ordinary statu canons of private discriminatory before decisions tory It well established construction. judicially could be controlled.5 See Civil rights should read that civil statutes Rights Cases, 3 S.Ct. U.S. pur expansively fulfill their in order to simply late It is too L.Ed. Breckenridge, pose. Griffin See day say judicial now con L.Ed.2d U.S. very impossible trol reason supra. Paul, (1971); Daniel v. state involved. Whatever reading why our There is no reason one thinks of state action as a viable 3604(c) comport should Section limiting principle on the constitutional this rule.4 equality, command of least should at reading Moreover, contrary outrageous depri be clear that the most adopted by Court the District statute rights equal perpe are those vations anomalous indeed. Such leads to results Surely trated itself. Con the state governmental par reading authorizes gress must have of this been aware universally ticipation in now what principle years of —sanctified viz., illegal conceded be an endeavor — litigation “state action” it voted —when housing segregated aof maintenance 3604(c). to enact Section un We are hardly pointed It need out market. be willing legislators to that believe strongest public policy that sort of that who voted for Act intended to ex argue against construc considerations empt the most from its serious offenses permit tion of the which would statute coverage. government co-conspirator to become illegal Elkins See v. scheme. Local Statutes B. States, United 1437, 364 U.S. (1960). 4 contentions, L.Ed.2d 1669 Tank reply appel- to these Cf. Rentals, Truck Commissioner of argue that, 3604(c) Inc. v. if lees even Section Revenue, registration Internal 356 U.S. 78 precluding S.Ct. can read as be (1958). legislation 2 L.Ed.2d 562 covenants, racial local prevents the District Columbia Code Furthermore, the District Court’s instituting relief the Recorder from reading of the would out a statute carve Recorder, requested. they point exception pro- statutory narrow Mintzes, D.Md., 304 F. United States v. surprising few it is that Thus not (1969). Supp. 1305 with § thus far dealt courts which have light broadly 3604(c) it construed generalization course, does not Of purpose. v. See United States judicial legislative apply to re- to or action ; (1972) Hunter, Cir., 4 459 F.2d 205 slavery badges and incidents of un- move Tenth West Peachtree United States v. See Jones Amendment. der the 13th (1971). Corp., Cir., 5 F.2d 229 437 Mayer Co., 88 H. Alfred Cf. Lawrence Real v. Bob States United 1189 20 L.Ed.2d F.Supp. (1971) ; ty, Inc., N.D.Ga., 313 870 “affecting cord out, is those officer who instruments ministerial is ownership of real the title or estate.” accept to deeds tendered bound all to course, exercising any that independent it uncontested after Of is him without Kraemer, supra, Shelley v. a restrictive discretion. no or can have effect on title covenant totally argument without is This Moreover, Regu- ownership. Police place, as- even if we merit. In the first Columbia, Ar- District of lations acting under Recorder is that the sume 3(b), illegal ticle make it to Section statutory records compulsion when he deeds, include covenants restrictive covenants, does this fact racial alone supra, D.C.Code see note and 45 § judicial from conduct insulate his forbids the Recorder out which sets review. statute The local “any shall not exe- instrument which powers Deeds of the Recorder of acknowledged agreeably cuted and preempt hardly supposed can law.” Since restrictive covenants Indeed, Fair Act of 1968. “agreeably law,” executed “any explicitly provides Act statutory Recorder mandate exceeds his subdivision, State, political law of filing. accepts when them purports to jurisdiction that other such require permit action that Dancy It is old true case housing discriminatory practice abe Clark, App.D.C. states subchapter ex- shall to that under this that “the of deeds recorder is the cate- 42 U.S.C. tent be invalid.”6 gory officers, ministerial has no 3602(f) (1970), in 42 U.S.C. § jurisdiction upon pass validity “ turn, [discriminatory hous- defines writing presented instruments him ing practice” “an to mean act that But record.” Id. at 499. that case * * * unlawful under section 3604 imag- years was decided before was above, argued And, this title.” ined that inclusion of covenants recordation of restrictive illegal made deeds would 3604(c). made unlawful 42 U.S.C. § state cove- involvement part It if a of the District follows that wrong nants constitutional was really Re- forces the Columbia Code magnitude. credulity It stretches appellants’ corder Section to violate breaking suppose point rights, portion then that Dancy court able foresee the 67 pro Code tanto unlawful. years statutory and constitutional unnecessary history transpired for us to invalidate since which have any provision anything in of the District Colum- its decision. there Nor is Code, per- Dancy however, support proposition bia since fail to statutory accept ceive conflict which trou- a doc- bound appellees. contrary, when, by doing, bles On ument his so exceeds provisions, statutory injury powers read the local and commits reject pag- has no proportions. choice but to See constitutional Thus, Dancy preference. Indeed, indicate es 637-640 infra. recognized while must Re- court itself that when a doc- it conceded that the is, purposes, facially corder ument is for most minis- invalid the Recorder course, officer, (1) justified refusing 701(a) it.7 terial 45 D.C.Code Of § facially required makes clear that he restrictive covenants have been 3602(g) (1970) refusing it, yet 6. 42 defines and record U.S.C. to receive not, by mandamus, the District “State” to include Colum court writ of co- will upon action, appears bia. his if it erce con- paper sideration contents of the of the Dancy law, for, Clark, App.D.C. 487, v. 24 499 that it is invalid under the Moreover, paper (1905). event, if a and to “even on coerce his action com- regularly appears receipt paper its to have been mand the and record face record, thing nugatory Id. it to would be law.” executed so as to entitle authority position to be in ac- exceeded his at 500. This seems recorder had

637 Kraemer, supra, Shelley A. invalid v. Action State since decided in Any discussion of state action and equal protection begin must with a de Thus, duties the Recorder’s whether lineation which have of the boundaries discretionary or minis- viewed are terial, defined this since Re controversies like that he it at least clear should hand, construction. one On the Civil authority to has not been invested Rights Cases, supra, clear that makes accept law. refuse break the paradoxical proposition We invasion “[i]ndividual individual very rights subject-matter of powers restrictions the Recorder’s amendment.” 109 [Fourteenth] U.S. which, purposes, make his ac- most 11, extreme, 3 S.Ct. at 21. At the other enlarge au- tion his ministerial somehow Virginia Rives, like cases 100 U.S. v. thority permit him exceed (10 Otto) 313, 318, (1880), 25 L.Ed. 667 statutory jurisdic- put limits through may teach that “a State act restricting We think tion. statutes agencies, legis different lative, its filing —either the Recorder to the of instruments executive, judicial or its au “affecting ownership title or * * * thorities; prohibitions and the real estate” and “executed amendment extend to all [Fourteenth] agreeably they say to law” mean what denying equal action of pro the State are not be flouted on the laws, tection of it whether be action theory sophistic placed the limits agencies one of these another.” power on the Recorder restrict his obey course, easy Of it those limi-i. no matter to de-

termine where “action of the State” leaves off and invasion “[individual Appellants’ Argu- II. Constitutional rights” begins. govern- individual As ment responsibility mental racism was clearly perceived, statutory old It must more “state be owned that arguments provide action” bright-line formulation made en- above ceased tirely test for free consti- the cir- limits Under doubt. g., cumstances, equality. appropriate See, tutional Hunter v. we think e. Erickson, 557, princi- 385, 393 U.S. 89 S.Ct. add a words 21 few about another (1969); Mulkey, is, L.Ed.2d ple 616 opinion. Reitman v. our influences 1627, course, 369, elementary courts, 387 87 S.Ct. 18 L.Ed.2d where U.S. (1967); Newton, possible, 830 Evans v. 382 U.S. as to construe statute so 296, 486, declaring necessity 86 avoid the S.Ct. 15 L.Ed.2d 373 it un- See, remand, g., affirmed after e. nom. Evans constitutional. United States sub Abney, Rumely, 45, 435, v. 396 U.S. S.Ct. 90 24 Indeed, (1953); L.Ed.2d 97 L.Ed. 634 Crowell v. the Su- preme Benson, Court itself has now conceded U.S. S.Ct. precise (1932); apply 76 L.Ed. “to fashion and Lucas Alexan- der, recognition 573, 577, respon- formula for sibility U.S. state Equal under a construc- Protection L.Ed. Thus if tion of the local ‘impossible which author- statutes Clause is an task’ which ‘This ” required accept ized or the Recorder to attempted.’ Court has never Burton v. Wilmington covenants would Parking mandate Authority, 365 U.S. denying equal state action 715, black 722, citizens 856, 860, 81 S.Ct. 6 L.Ed.2d 45 laws, protection of (1961). that construction difficulty formulating This should, possible, precise, principled if be rules for limits avoided. Corp. Buyers jurisdic Appliance cord with v. that of most other Credit Cf. g., See, Youngblood 241, Crivello, tions. e. v. 168 N.W.2d United Wis.2d 43 States, 892, (1969). Cir., 912, (1944). 6 141 F.2d 913 896-897 638 8 responsibility. The Recorder has state led numerous com action has of state policy ille- suggest concept decision consider be made

mentators jettisoned by gal, replaced as “af- altogether, to racist documents fecting ownership in title or of real individual which balances some test (1). 701(a) against equality competing in See estate.” 45 D.C.Code § terests Black, concept g., If See, “state action” has privacy. e. terests in meaning at is a Court, all, then that Supreme Foreword: decision Term, 1966 fully Protection, Action,” Equal state decision for the state is “State 14, responsible. Proposition 81 Harv.L. California’s Shelley Henkin, (1967); v. Rev. 69 Opinion, a Revised Kraemer: 1940, 89 U.S. S.Ct. 21 L.Ed.2d 616 91 29 L.Ed.2d 438 S.Ct.

639 governmental legitimate put, best there is no that can be said Re- The for the possibly approval served corder which could be that his interest these ra- by accepting purpose— restrictive cial covenants classifications serves no analogous filing. are that more These his are no than a documents actions forged correspondence thoughtless, consequence instruments noninvidious containing purpose of ex- for the inertia. But threats bureaucratic bureaucratic entirely they hardly justifica- compelling outside inertia tortion in that are illegal They preservation to execute tion for the law. are relic this illegal age long if to enforce. Even assume should dead. have been that office as no The racism the Recorder’s serves which continues to haunt storage country repository perpetuated than facil- more those ity, legitimate who do no interest not care well the state has as as those protecting preserving provides ma- these who hate. It scant comfort lignant persecution.9 trapped instruments of blacks in the slums in- of our jailers ner to know their cities are But of course the Recorder’s office is thoughtless rather than heartless.12 repository. designed more than a It flimsy poster- so much to store nature the state’s as- ity give legal them some effect. serted interest purpose marginal Such covenants means restric- even showing discriminatory tive is violative covenants of both effect would tip Fair be sufficient appel- Act10 and the Fourteenth the balance in truth, however, Amendment.11 If courts lants’ cannot en- In favor. dis- criminatory force racial exercise of effect of the Recorder’s general practices powers, their quite common law Shel- substantial. The fact ley supra, surely Kraemer, private v. then initiate individuals the dis- criminatory effectuate explains cannot them ad- neither conduct ministrative expiates fiat. Recorder’s actions nor his private 9. Cases such upon as U. S. National Ban clubs to choose members k Snodgrass, 530, discriminatory 171, 202 Or. 275 P.2d basis.” 407 U.S. at (1954) (en banc), 860 contrast, ap- and Gordon v. 92 S.Ct. our Gordon, pellant parallel 332 Mass. 124 N.E.2d makes no concession as to denied, right private cert. 75 S.Ct. homeowners to dis- (1955), totally private 99 course, L.Ed. 1273 are irrele criminate. Of discrimina- cases, vant housing illegal to the issue here. Those tion in de the sale of has been ago, uphold Mayer cided supra almost Co., decades since Jones v. Alfred H. power probate only justification of the state to wills with note 5. Thus the for the discriminatory provisions equal pro acceptance over of racial covenants tection attack. Even wholly if can still is to effectuate conduct which is represent good illegal. law, they goes be said to saying without justification limited to the situation in which the is in state fact no at all. aiding is legal. conduct which is not itself il 3604(a). 10. See 42 U.S.C.A. prevents no Since statute a testa devising tor from in a dis Shelley Kraemer, supra 11. See note 1. criminatory fashion, conceivably it could argued probate that a state court has once, 12. “Whatever the law is a refusing participate no basis for maturing concept testament equality that, to our legal, private in this discrimination. The help Supreme with the Supreme Court’s recent decision decade, Moose Court decisions the last we now Lodge Irvis, No. firmly recognize arbitrary qual 107 v. U.S. ity thoughtlessness L.Ed.2d can disastrous injunc wherein the private Court vacated an rights pub and unfair to and the granting liquor tion aof state perversity lic interest as the of a willful private license to clubs with Hansen, D.D.C., discrimina scheme.” Hobson v. tory guests practices, may E.Supp. 401, (1967), affirmed, sim sub ilarly distinguished. appellee Hobson, U.S.App. nom. Smuck v. Lodge right Moose (1969) (en banc). “conced[ed] D.C. 408 F.2d 175 640 tin, 402, at supra, at 84 S.Ct. Supreme “cases 375 U.S. sponsibility. Court “heavy impetus a for- bear Such classifications for clear make that Loving originate justification,” Vir of v. burden not discrimination need bidden 9, ginia, supra, at it has that 388 U.S. it is state action if State privately thought prove necessary originated never been discrimi- enforces Irvis, them Lodge actual be v. harm derives 107 No. nation.” Moose supra, Bry they 172, See fore can invalidated. 92 S.Ct. at 407 U.S. encouragement N. ant of Assessment of v. State Board manifest The Recorder’s ; C., E.D.N.C., F.Supp. (1968) 1379 293 private offensive of discrimination Elections, Virginia Hamm v. State Board of equal protection quite apart from the F.Supp. .Va., 230 156 activity seize private who of citizens E.D gov illegal Instead, proof justify of the burden upon his their actions strong permitted ernment to demonstrate some is not state conduct. The justifies reason which the classification. racial a vehicle which “[furnish] 184, McLaughlin Florida, oper-

prejudice may See v. 379 U.S. sobe aroused as to 222 group 85 13 L.Ed.2d race S.Ct. of one because ate W.D.N.Y., Martin, (1964); Nyquist, for Anderson another.” Lee (1970). Yet, F.Supp. 710, dem U.S. accepting above, appellees not By re- onstrated have here L.Ed.2d 430 begun filing, even make such demonstra covenants official strictive government’s prepared, at this puts tion. Unless we are seal date, give deeply up of- racial approval late documents battle on racist thereby justice in obeisance fensive citizens the name blind to black judicial restraint, “affect hearts and their minds doctrine [s] unlikely practices permit way Brown cannot be ever be undone.” Recorder’s Education, ted to v. Board 494, continue. 686, 691, 98 L.Ed. (1954). Moreover, take this court can Appellees’ III. Contentions judicial that official notice fact likely appellees’ position If we of these documents is understand correctly, give legitimacy they wisely them a and effectiveness contest do not eyes laymen they validity arguments in the do not the constitutional beyond certainly not made But law. whereas one above. per- possibility think the realm that a black an end concession would make might go buy case, appellees home in son reluctant on to raise neighborhood government supposed practical number white when and tech- recognizes racially which, contend, implicitly itself nical difficulties “affecting preclude requested. strictive ti- covenants as the relief Given overwhelming ownership tle deed, In- of real estate.” statu- constitutional and part tory imperatives the white character a con- dictate trary result, hardly surprising recorded racist District where it is arguments barely testi- covenants abound stands as mute the level these rise to mony to their continued effectiveness. makeweight. Finally, if the even subtle but real Standing A. damage described above is considered judi- speculative too remote or to receive argue that, Appellees first whatever recognition, cial still said cannot be injury the constitutional suffered appellants have failed to make out a actions, blacks because of the Recorder’s constitutional claim. “The vice lies appellants ease are white resulting injury plac- in ing the racial harmed. Since power State behind a contended, nullity, it is classification induces racial * * prejudice publication in no v. Mar- Anderson them way appellants’ (1935). Surely titles and thus L.Ed. 1254 affects if our rights. deprives possess compe- them noof courts the institutional contingent to wrestle tence remain- argument might But while such Against Perpetuities ders and the Rule validity in a different con- have some action, they in such an can also. vindi- text, ignores Supreme it Court’s statutory, cate basic constitutional and willingness rigid standing to relax re- rights. quirements dealing when with restric- Jackson, In tive covenants. Barrows v. B. Administrative Burden Supreme supra,, example, Court explicitly permit it held would that Next, appellees contend that it would white whose homeowners land was bur- inconvenient and burdensome for dened assert covenants implement requested them to the relief rights prospective constitutional black might implementation and that full re buyers. peculiar “Under the circum- quire employment of some additional case, of this stances believe rea- personnel. join sincerely canWe all denying sons which underlie our rule regretting recognition fact standing rights, to raise which another’s appellants’ rights may impose some ad only outweighed practice, is rule of are ditional on the burdens Recorder’s of protect the need to fundamental surely appellees fice. But do not mean rights by permit- which would denied they go violating to contend that can on ting damages action to be main- rights statutory constitutional 257, tained.” 346 U.S. at 73 S.Ct. at of black citizens because such violations 1035. See also Sullivan Hunt- v. Little suit the Recorder’s administrative con ing Park, Inc., 237, 229, 396 90 U.S. Carrington Rash, venience. v. 380 Cf. (1969). 24 L.Ed.2d S.Ct. 386 89, 96, U.S. 85 S.Ct. 13 L.Ed.2d years 675 Seventeen of bitter Moreover, say inaccurate to continuing struggle over de school injury white homeowners suffer no segregation have made clear that vindi caused cove these rights cation constitutional al percentage A nants. certain of blacks ways easy. But we do not con have a buy property no doubt refuse to bur system government stitutional be dened with recorded such covenants ei cause that is the easiest or effi most they ther misappre because under are running country. cient means legal hension as to the effect of the cov guarantees of Fifth and Fourteenth they or because enants go do not want to were Amendments written into the Con they appear where unwanted, to be very purpose pre stitution for the legal rights. whatever their To ex venting goverment some future official tent these decline to blacks bid for title ignoring equality demands appellants’ property, marketability for the sake short term “convenience.” of that suffers. Buchanan Cf. Cooper Aaron, supra, 358 at U.S. Cf. Warley, 245 U.S. 62 S.Ct. 16-17, 1401; Buchanan v. War L.Ed. Nor is it relevant ley, supra, U.S. S.Ct. marketability diminution of by extralegal caused Moreover, factors. It has it should be noted that thought parade never been upon that a appellees cloud horribles one’s legal title had point largely imaginary. constitute a Appellants valid sitting claim equity scrupulously conscientiously before court have Indeed, could remove pur requested it. the whole tailored their relief as to so pose of a quiet traditional action to title minimize interference with Record- clarify putatively the status of Appellants er’s normal routine. are not See, invalid asking go through g., claims. e. Barnes v. the Recorder to Boyd, S.D.W.Va., F.Supp. 584, 597, presently thousands of file in deeds affirmed, Cir., 73 F.2d a search for restrictive Nor covenants. denied, they requesting cert. 55 are tenor of to a referred Instead, changed. visions deed be

recorded lawyer determination. for a Record- ask future arose, really de- doubt serious case where claratory judgment cov- accept with restrictive deeds er not procedures are avail- in them. With enants already binding judicial determi- secure a Re- able to file, appellants wish document’s tenor. indicating nation attach a notice corder suspi- escape difficult therefore the liber void to covenants are strictive to which might burdens cion that the so-called volumes reality more point no appellees copies made of recorded be found and post invented as excuses than feeble containing far So covenants. deeds intran- justification for bureaucratic hoc see, of this elements the latter we can sigence. pur- by effectuated the be relief could large stamp surely rubber chase of — Legislative great pay vindi- Action price for to to not too C. Deference rights. of constitutional cation suggest appel- Finally, appellees that, complaints of respect It true future their to should address lants political deeds, someone in the office racial discrimination attempt- government de- to read documents to and that would have the branch of illegal they ing the from termine whether contain reform to wrench social disregards principle sep- judiciary must read covenants. But these be deeds must, they. powers. are But while we event to ensure aration of English, identify clearly proper for course, written parties, maintain obscenities,13 jurisdiction are branches .contain no of coordinate ju- “agreeably government, otherwise executed law.” under law the of diciary our majority obligation enforc- 45 D.C.Code vast too has the § 503. rights. ing today contain no shown deeds filed constitutional As agreements,14 process opinion, rou- due hence could be Part II this tinely filing. approved prohibits for Most Amendment clause of the Fifth incorpo- cove- which do contain such covenants of restrictive official duty agreements rate drafted an earlier therefore nants. becomes judicial appel- neces- era before it was fashionable or branch to enforce rights by enjoining sary coy. provi- for racism to These be lants’ constitutional Congress disgustingly brutally practice. fact sions are frank,15 easily power possesses unquestioned and could filtered out also by rights personnel by appro- middle level without exten- enforce constitutional thought legal training. legislation priate sive United never States been Cf. Hunter, supra, (“a pub- responsi- judiciary 459 F.2d at to relieve the bility readily lisher can from the determine area. Indeed was majoritarian pressure of an advertisement it is face whether Framers’ fear of discriminatory express political intended to preference”). resulted branch that has very becoming primary judiciary few in Thus ambiguous guardian Rights. pro- deeds with or borderline the Bill “The Apparently presently agreed report existence of ra- appearing screens all deeds submitted to him en- in the records of cial covenants they requirements. sure meet these title title on for which issue Appellants’ assertion to this effect before See Exhibit A attached insurance. challenged ap- the trial court was not Plaintiffs’ Memorandum of Points pellees and, summary purposes judg- Authorities, supra argu- for At oral note 13. ment, ment, panel initially must be assumed to be true. See heard this companies Plaintiffs’ Memorandum of Au- Points and case was informed that these Opposition responsible thorities Mo- Defendants’ of the deeds are about 95% Complaint filing. presented tion to Dismiss the at 6. to the Recorder request Depart- 14. At supra. of the Justice 15. See note 2 major ment, companies title complete Therefore, Rights very it seems purpose of Bill of was to accord. separately subjects vi desirable to set forth certain withdraw controversy, more political limited which several rationale cissitudes agree. majori beyond do in fact members court place reach of them establish them ties and and to officials restraint, judicial The doctrine of applied principles cautions a court to decision con- avoid life, right liberty, and courts. One’s questions necessary stitutional when not press, property, speech, a free to free disposition applies controversy, for also, of a assembly, worship and freedom of think, reliance on an to serious rights not be fundamental application principles. of constitutional vote; they depend on the submitted particularly This is true when the con- Vir of no elections.” West outcome ginia although they may principles, stitutional Education v. Bar State Board sound, certainly not either con- nette, entirely precedent trolled direct 1185, L.Ed. free from doubt. awaiting Moreover, argument for statutory is also There an interrelated congressional the fact overlooks action doctrine, should con- statutes Congress in this field. has acted strued to avoid serious constitutional sweep- passed it It acted in ing when problems. In at case bar we believe the guaranteeing rights legislation civil only that the relevant statutes not make “same to right citizens the all United States statutory a more limited rationale avail- * * * enjoyed by white as is decision, statutory able for but such ra- ** * inherit, purchase, citizens lease, sell, hold, entirely convincing tionale as sound convey per- real and Specifically, course. even if we assume property.” 42 U.S.C. sonal say purport —and we do not to —that again it when It acted ground- this action would to fail if Amendment, adopted the Fourteenth thereby establishing universal citizen- arguments ed on broad constitutional alone, we are convinced that stat- these rights ship equal under law. And utory provisions plaintiffs entitle re- recently it acted in 1968 when com- most erroneously lief that withheld the was housing legislation prehensive fair District Court. purpose written into law for many respects opinion only not “provid[ing], constitutional limi- within reaches the same as to dis- conclusion housing throughout the tations, for fair position, but also uses same mate- United States.” 42 U.S.C. § rials, Judge opinion as the authored Wright. approach signifi- But the Now the has the courts time come cantly opinion begins This different. already entirely waited to act. We have analysis with an functions of the long vestiges wipe too out the last point D.C. Recorder of Deeds. The official discrimination which has not provisions unique that the D.C. are housing market time tainted from conti'ary, or unusual. On func- judgment out of of the Dis- mind. are, tions of the Recorder of Deeds D.C. trict Court must therefore be reversed generally speaking, similar to the func- and the cause remanded. tions kind official in the vari-

ous states. WILKEY, Judge, Circuit with whom gained What is exam- detailed Judges Circuit McGOWAN and LEV- perspective ination his functions ENTHAL concur. scope of the Fair Hous- clarifies the Judge Wright’s opinion ing Act, applies is infused to the as Recorder’s throughout approach with broad also constitutional That shows functions. assumptions, why appellees’ arguments discussions and based majority all practical members of the various and technical difficul- provides of the statute The same section Our central substance. ties are without that, parties to all Act as between position Fair is that above, except publishing persons listed prohibits those 1968, which from the date to the deed takes effect or statements with notices delivery. Thus, unrecorded dwellings indicating dis- while the sale of title,1 passes of the race, deed color or na- crimination based legal consequences, in- origin, deed definite in the read it must be tional pertinent statutorily required to statutory as it is con- asmuch and decisional grantee’s protect cred- text, title apply does functions purchasers subsequent itors, bona Recorder of Deeds. fide mortgagees without notice the deed, prop- Under I. interested in the Office others erty. District Columbia Statutes Furthermore, must owners of begin beginning, the To stat- property their or else real record practice demonstrate and actual utes losing risk title to those listed primary the Record- function of statute, subsequent purchasers preserve pro- er is not to records but must examine records public vide notice of After them. obtaining Re- proper risk not title. else recordation, re- it is deed is filed re- course to the Recorder’s office is prop- turned the current owner of the quired delivery of and after both before erty, may assume, ordinarily who, deed, as to information first to obtain it in whatever manner he is accus- tains give all others title, and last to notice to preserve important papers tomed protect title to transfer of possessions. or valuable If Record- obviously owner’s It new is interest. merely “conservator,” er were accomplish could provide public duty notice to the to and by providing purpose this copies on de- make of deeds available original could deed vaults the mand, safe-deposit-vault not the mere pigeonholed, to with access limited preservation deeds, the of which is the the office owner and the important the Re- most function property, mortgagee, the other the corder. claiming an But interest therein. the pigeonhole Recorder does not the deed. spreads upon

He public it folio volumes Recording prohibited where in- B. to record for all the world examine ac- executed and strument not knowledged see. and agreeably to law. just pas- That the Recorder not is give Recording required A. to notice. deposit repository, sive like the safe purpose this, and that bank, by the box at a is shown second primary function role of Re- statute, relevant D.C. 45 D.C.Code § age-old implicit corder, is com- accept to forbids the Recorder property regard mon law real “for record or record instrument purchasers, to bona fide third codified ac- which shall not be executed and ” in 45 D.C.Code 501: § knowledged agreeably . . to law . . Any conveying indubitably deed not clear what real in the District acknowl- . . . as to credi- words “not executed and edged agreeably subsequent pur- tors bona fide to law” mean. mortgagees interpretation if chasers no- more without limited deed, irregularity apparent tice of there is an others interest- acknowledgment property, ed in said shall take of execution it mode sig- (i. e., delivery effect from the time the deed the correct number of of its to natures, seals, etc.), the Re- witnesses, Recorder of Deeds record. Radetsky, 1. Intermountain Lumber Colo. P. Co. A.L.R. it, reject practice accepted. required and that current must be to

corder go his ex- Thus the all deeds Recorder does screen far as he should is as accomplished him submitted to insure could be amination. This agreeable reading any part of deed law. without acknowledgment, except neces- that, deny if It would difficult par- sarily descriptions of even Recorder can define and detect ob- property. ties or the scenity, he can virtu- define detect easily ally any including illegality, have statute under this The cases cited racially discriminatory covenant. given interpretation, such a limited Dancy held it was In v. Clark however. racially C. Inclusion restrictive by the . Recorder “. . prohibited. covenant . . required file . receive and law The third relevant is Article statute duly exe as have been such instuments 3(b), Regulations the Police § cuted, purport face on their and which District of Columbia the instruments the nature of be of illegal which makes it a ra include At to be filed or recorded.”2 entitled cially “in restrictive covenant the terms very Re least this means or conditions transfer an interest cursory give the corder is to deeds a property.” appears in real This to be they “pur reading to determine whether (an a definite determination that deed port the kind of doc on their face” to be prop instrument used the transfer of Dancy filed.” it ument to be “entitled erty) agreeably is not executed law interpretation self sustains this broader if it contains such duties, for there our of the Recorder’s covenant. paper court “even if a held that regularly appears language been plain face Under § Reg- it record executed so to entitle 45, 3(b), Article of the Police yet not, by writ ulations, require will . court the Recorder’s duties ap mandamus, reject coerce action restric- him to deeds which contain if pears upon consideration con tive He an affirmative covenants. paper tents it is invalid un obligation insure are exe- that deeds ” 3 law, Dancy der . “agreeably . . cuted Far be- to law.” invalidity improp ing storage receptacle under the law was a mere box specification corporate purposes, er of preservation purposes, Recorder for the invalidity appears much to be requiring of some has exercise duties legal more judgment difficult of definition and detec receives the time racially (or a rejects it), tion than restrictive covenant. im- deed and further a placing portant requiring his the duties According allegations the of give in will deed of record a manner that plaintiffs, present practice the the of relating making inquiry notice to all Recorder to refuse instruments is thereto. English, are not in that contain obscen- identify parties. ities, the or that do not Prag- D. Recorder’s actions — allegations plaintiffs Since these of matic considerations. uncontradicted, case and this comes Having something of statu- seen the grant appeal from the District Court’s tory in which the Recorder’s framework for defendant’s motion to dismiss operates, some office let us examine action, plain- failure to state a cause practical bearing on what allegations considerations tiffs’ to the Recorder’s as 4. 2. 24 3. supplied). for Ibid. “[I]t any person App.D.C. 487, (emphasis supplied). shall be a violation to do (1905) of this Article the (emphasis following erty any because tional “(b) a ^[*] transfer of an interest origin of Include clause, the ^[*] race, color, in the condition or restriction.” Si* individual. terms religion s{i in real conditions or na- prop- ^[*] implications Act are re the 1968 of this and what does now Recorder infra.) fully, regard Whether discussed more in do appellants he should claim companies cause filing the title contain- this means rejecting deeds in dropping all racial covenants out of ing racially covenants. restrictive portion of this aor substantial 95% “determining be that well the rec- is unclear in deeds recorded all is a ra- deed a covenant in a whether stage. does undenia- ord at this What a le- cially demands covenant restrictive however, that, given appear bly true original panel gal judgment,” as form deeds and the use of D.C.Code states, necessar- opinion does major companies, position a title ily staff that “the clerical follow would be search racial covenants certainly not have the does Recorder percentage quired in small a per- knowledge, capacity or acumen to offered for recordation. by appel- them the tasks asked of form making dealing today a 3. We are not here Recorder is lants.” recep- validity completely passive, legal judgment ac- Recorder on the legal question tive He an “affirmative obli- whose role. has knowledgment, gation depending act, or not frequently to act” involved vast answer has making fur- finds in His action what he the deed. The Recorder sums.5 legal specific consequences has for the legal judgment presence of ther on the grantee reading possibly obscenity, for numerous requires parties, validity the deed deed, because well as an examination as among hinges upon parties, as- them the action description and an English. taken 45 D.C.Code the deed Recorder. certainment 501, supra. rejected Furthermore, § Recorder has invalid- deeds for other reasons 4. Even if a determination in favor doing, ity, as sustained so been granting declaratory of the plaintiffs, Dancy Clark, supra. judgment defining injunction and an place actions, an addi- The burden on him, tional administrative burden on performing effort these tasks objection is no examining valid if in truth and in he would have to make petitioned fact action called for racially restrictive is not as by the law. great argued. A substan- been percentage recorded tial of the deeds holding E. Decisions “short-form,” “Law are the so-called obligated to record certain deeds, Reporter,” or “D.C.Code” deeds. standardized form at 45 D.C. deed found Code deeds contain 301. These form Neither our own nor research that of covenants, im- no parties has uncovered a case mediate identification of the deed as position bar, e., same one at i. necessity of de- form deed the obviates parties seeking prohibition a blanket tailed examination. against recording the Recorder of Deeds’ type Usually a certain Furthermore, Judge Wright’s opin- deed or deed. the as reverse, e., points situation arises in the the (Op., p. 642, 14), ion i. fn. out Recorder argument of Deeds has exercised his non- oral conceded that the was legal judgment neutral major whether companies responsible as to title subject not, document to presented for rec- of the deeds for 95% rejected it, upheld has and has been ordation, companies and these .same the courts. agreed Depart- have with the Justice racially report ment not to jurisdiction case in this (The policies. in Dancy their Clark, title supra, v. in which our court See, g., Refining many 5. e. Oil Humble & Co. worth millions of dollars set aside Downey, faulty acknowledgment). 143 Tex. 183 S.W.2d because of a (1944) (conveyance by properties lease of grant compel land, granted refused to mandamus sale to thus the court compel County in- Recorder to file a certificate of mandamus to the the Recorder corporation improper expunge pur- where was to there an and cancel the “offer to specification corporate purposes. chase” from his Our records.10 upheld court thus the “nonneutral” act opposite posi- With the Recorder in the refusing accept in an Recorder tion, jurisdic- cases have arisen in several invalid document. erroneously tions where the Recorder has litiga- filed subsequent a document and in Youngblood Similarly, in v. United tion that, court held because the States6 the Circuit held that Sixth document under the recordation or other Wayne Registrar County was Deeds statute filed, was entitled no.t justified refusing in record a federal recordation would not constitute con- comply tax lien which did not subsequent structive pur- notice to statutory descrip direction to include a original property chasers from the tion of the covered lien. grantor, and thus the recordation was In re Finkelstein involved a more diffi legal without effect.11 legal judgment, cult in that the New York assignment wages court held that an for together, Taken these cases show that given security payment of a debt in Recorders various exercise their states given was in a manner which violated a legal judgment refusing accepting statute, New York and therefore recordation, documents tendered for County Clerk was correct in his exercise legal making judgments they legal judgment and refusal to file the Or, upheld by if in have been courts. assignment.7 error, corrected, their action has been legal case Ohio where erroneous Various decisions sub- judgment by County Recorder was mitted document is similar to or an reversed, required in that he was abridgment document, of a which under expunge he from records a document would entitled to recorda- statute never should have recorded in first tion, abridgment held that have place. similar document is not entitled to Logically, recordation it does not fall it would that in because seem cases, party squarely Mary- had within statute. these if an interested sought prohibition land court 1966 held a ver- shortened filing writing (lease agree- longer sion the document which ment) filed, would the court was not to be entitled recordation entitled though original granted prohibition. even In the document such a would Likewise, have been.8 case we have documents which are 1969 Wisconsin at bar Registrar objected held restric- Deeds was correct because refusing filing legal effect, accept is void and of no a lease tive clause personal although prohibited, property, enforcement required placing accept have been condi- Recorder’s such a deed clause one; mortgage.9 give tional sales to no contract or chattel record would notice therefore, accepted purchase” In Ohio an of the above “offer rationale cases, prohibited equivalent was held not the Recorder should be to an “executory filing place. it in first installment contract” for the Cullen, (6th 1944). 5 Ohio 6. 141 F.2d Puthoff v. ex rel. Cir. State App.2d 13, N.E.2d 201 7. 11 Misc.2d 174 N.Y.S.2d 126 Tandy Dickinson, g., See, 371 S.W. e. Maryland, 8. Motels of Inc. Baltimore 1963) ; (Texas Civ.App., Low v. 2d 81 County, 244 Md. 223 A.2d 609 (Wyo.1970). Sanger, P.2d 60 (1966). Appliance Buyers Corp. 9. Credit v. Cri vello, 43 Wis.2d 168 N.W.2d 892 (1969). juris- unquestionably This and in other would seem true Recorder’s here Office brought dictions, disposi- if an individual action were the decisive factor filing prohibit any deed Title tion case at bar becomes individual 1968,13 Housing

with a of the Fair Act of restrictive covenant. VIII What is bar is a makes it asked for the case at unlawful prohibition blanket in advance make, print, publish, or cause [t]o or accepting deeds such for recordation. any made, published printed, to be notice, or question, While a differ- different advertisement, statement, or legal appears, principle ence involved, not in the respect with sale or rental of possibly practicalities dwelling any preference, that indicates functioning the Recorder’s limitation, or discrimination based purposes office. For motion origin, race, color, religion, or national dismiss in case the facts are prefer- or intention to make established reject does now that the Recorder ence, limitation, or discrimination. agreeably to deeds not executed emphasized in words the statute The quoted reject law, requiring and that him to interpreta- whose words containing racially deeds decision make determines the tion be his covenants would consistent with here. present practice. administrative say that the Recorder 1. could We containing This assumes prop- prints sale of real notices of the racially restrictive are not erty be the deeds to in that he causes agreeably Shelley executed to law. Since But, photographed into and bound books. Kraemer,12 such clauses been publishes importantly, Recorder more nullities, but this in itself with such notices or statements thought justify court action dwellings. As defined to the sale regulating the Recorder’s conduct. We Unabridged Dictionary,14 the Webster’s have noted the District of Columbia public, “publish” “make word used to Regulation, 45, 4(b), Police Art. § general; people in known to to make plainly states, shall a violation “[I]t pro- divulge, promulgate . or . . race, color, because of the ” Diction- claim . . . . Black’s Law religion origin or national “to ary “publication” to include defines individual . . . [to] [i]nclude exhibit, display, or reveal.”15 disclose the terms or conditions of a transfer of precisely This is what Recorder does property any clause, interest in real deed; office in which is the condition or restriction.” This alone known; publicly the deed is made prohibit would serve to taking divulges it; promulgates to one accepting deeds in violation of this to the Recorder’s trouble to come Regulation they could not have been — office, pro- announced or the deed is agreeably “executed there law”-—but claimed, displayed, exhibited, disclosed prohibition greater is also a force and above, pointed As under out revealed. dignity to which we now turn. deed is effec- D.C.Code mortgagees, creditors, innocent tive as purchasers 11. Title VIII the Fair Act notice, without (42 3604(c)) U.S.C.§ parties filed interested until recordation in Recorder’s office. A. The the statute. face of analyzed having ap- After statutes the action Whether plying specifically necessary District of or after the viewed before Columbia, practice immaterial, and the sale because statute 12. 92 L.Ed. 1161 Diction New International Webster’s (1931 ary ed.), at 1731. 3604(c) Dictionary (4th 13. 42 U.S.C. § Law ed. Black’s 1951). or rental to the sale publishing 3. “With to the itself does not refer dwelling” necessarily a deed involves of a of a dwell- or after a sale notices before properly ing. A deed and its recordation. with notices all familiar We are legal event, only type instru- published such recorded the after are the pages the sale put ment which can consummate the on the financial as notices dwelling. strictly cor- regard a newspapers declara- in to the While say does rect to the Recorder himself the consummation tion of a dividend or selling renting, involved large sponsored he is do a transaction financial market, real by the commercial estate certain listed investment houses. in- Two both before after sale. might carry- compare newspaper We dispensable ingredients any real estate ing legal newspaper should If a notices. Recorder’s transaction a visit the are carry the with a text deed sale, the office to check the title before argue anyone covenant, could office to file and a visit to the Recorder’s publish newspaper did not the sale. the deed record after the for regard role notice? Recorder’s The the role of title have referred to to the news- We to real deeds is similar estate companies, regard usual link be- paper’s publica- insurance the role with legal newspaper of the Recorder tween official records The tion of notices. reader, buyer estate and the seller in a real physically to the where- carried significant Highly transport transaction. physically must reader interpretation Fair we make here of the office to read himself to Recorder’s Housing 3604(c)) done, (§ applicability to deed, unless, frequently Act as is applicability similar company is the has a make an abstract title companies previously asserted every in his of title from title chain deed By Department letter Justice. the records in the Recorder’s office. eighteen major recording purpose of 26 November 1969 to the deed effect companies office, in the District putting a title insurance legal Department of Justice newspaper column, Columbia the notice Housing same; give world, Act of advised that Fair both notice Shelley16 prohibi- published. “broadened both only judicial enforce- tion cover not Turning notice, state- to the words covenants, their also ment of such ment, advertisement, words unless the public inclusion in documents such notice and statement are to be treated as policies.” The De- deeds or insurance surplusage, they interpreted must they companies partment informed the prohibits mean that the Fair Act violating practice their law were types other of communications besides reporting of racial the existence car- advertisements. “Advertisements” appearing in the records strictions ries the connotation a communication they were title on one to enter into a commercial induce policies. All issuing title insurance transaction, while word “notice” car- eighteen companies replied title ries the connotation of communication policies would eliminate future legal purpose. for a As we have seen reference to restrictions. above, legal purpose interpretation Act as pass of the 1968 deed is not title between the grantor applies grantee companies applying to the title —this logic delivery obvious deed— with even more statute effective on give con- a deed can be purpose himself. notice to Recorder If publication, mortgagees, it can. purchasers, innocent sidered recorded publication it is parties. when effective interested A, Shelley Kraemer, Memo- to Plaintiffs’ 17. Exhibit attached Op- Authorities Points and randum of 92 L.Ed. 1161 position Dismiss Motion to Defendants’ Complaint. 3604(c) pro- of this title.” is the for the The title Section world to see. abstracts we have been most in title insur- vision with which recitals restrictions concerned, republications, directly pro- policies which ance the section are any publishing discrimina- taken from Recorder’s official hibits publica- tory “notice, statement, companies’ or records. If the title advertise- 3604(c), by tions so must ment.” are covered § publications. be the Recorder’s ignoring 3(b), Thus, Article § in thus conclude that the Recorder We Regulations, if under D.C. Police even “publish the District does of Columbia previous District of law Columbia statement, notice, . a . . permitted a Recorder has been to be . sale . . of a regard repository” “neutral in to dis- dwelling publishes If . . . .” he criminatory covenants, racial since 3615 § any pref “indicates such notice which erence, any political voids law of subdivision limitation, or discrimination any “permit[s] that action that would be race, color, religion, based on or national housing discriminatory practice,” origin,” then so in he does violation of publishing racially restrictive 3604(c). very least, ap U.S.C. At the § by 3604(c) covenants is defined as such §

pellants would seem be entitled to the activity, the Recorder Deeds of requested relief, first declaratory judgment item of their Columbia, District of original whatever if that the Record longer role, permitted is no to be er so he does violation of law. acts passive repository when it comes Logically, authority this recording publishing racially thus —and — jurisdictions, can be restrained restrictive covenants. he has Whether law, particu in advance from violation thought not, it before or when larly since it is that his undenied conduct publishes the notice sale of the up disregard complete to now has been e., of a dwelling, records a deed con- i. applicability this law.18 taining discriminatory racial covenants see, engaging for the world he is in an regard Our conclusion is re- 3604(c); act unlawful under he thus § by inforced section of another the Fair engaging discriminatory also in a Housing Act, 42 U.S.C. § housing practice by as defined provides pertinent part that . . and to whatever extent his actions in ac- “State, political the law a subdivi- cepting question without sion, jurisdiction pur- or other such discriminatory racial covenants have ports require permit any action law, been authorized D.C. housing discriminatory that would be a extent law invalid. D.C. practice subchapter under this shall to (Emphasis sup- that extent be invalid.” Clark, Dancy point made in Another v. plied.) supra, Dancy relevant here. “discriminatory Section 3602 defines court observed that housing practice” Deeds, as “an act that though category is un- “in lawful under officers,” Section or 3606 ministerial nevertheless “is not Abney, 18. Evans testators, nothing the intentions yet by Congress 24 L.Ed.2d relied enacted found original panel opinion changed to show that in the has Constitution that. required all housing discrimination, restrictions In the field of wiped away by courts, to be congres is not reverse is true. There is now a Abney contrary. Cy racially held that sional mandate restrictive may ap- Pres permitted doctrine of trusts not be not be plied selling dwellings, where renting it was clear that the testator cf 42 U.S.C. application did not (also Regulation intend such when it § 3601 a D.C. Police mixing effect) ; thus, resulted in a law, races the same this area of testator selling felt This unwise. was sustained or rental of real estate dif Supreme grounds devising estate, Court on the ferent from the of real always policy uphold Abney. been state Evans was involved wholly prohibition publishing discretion to without containing determine “notices” or “statements” whether instrument writing covenants, should be admitted to record.” even gives though Dancy invalid, example court these were after least meaning discretion, Shelley promissory note, Kraemer. of the “if a The conveyance Dancy explained land, a deed discretion that the of or a chattel court might mortgage, was that such to him filed Recorder record offered to be the were (or covenants), incorporation, invalid though as a he would even certificate of certainly he also had the discretion warranted in a refusal to be Taking example, to record them. This would have it.” if refuse receive another been case with were asked to record a the covenants, just patent it been devise of land would have that was a violation against perpetuities, the rule the rule devises that violated and against might perpetuities, in- invalid, both be therefore he would have the valid, might accept it, Recorder discretion to refuse record if such invalidity brought either of them for recordation. somhow to his were attention, Dancy tells us that this changed passage This with the Title upheld by refusal record would illegal VIII, it then became since courts. covenant, anyone publish such a this, explained, supra, included Dancy scope The court summarized the Recorder, Recorder Deeds. Since the of this discretion in the Recorder: officer, has no ministerial like right He has the to exercise discretion illegal acts, perform his dis- discretion to judicial premises, but not dis- by limited Title VIII. cretion been cretion. The courts will him sustain his discretion does While the existence of when acts within the limits compel in- him to alert to such reposed him; discretion will rule validities as violations coerce his action when he has exceed- positive prohibition perpetuities, right ed those limits and denied imposes duty 3604(c) U.S.C. § parties by law entitled. racially re- alert for present Whether his action in the case covenants, strictive and to refuse scope falls within without record them.21 authority vested in him remains according be determined to well-estab- legislative history. B. The principles lished of law.20 legislative although history, exten- emphasized portion quotation voluminous, sive and sheds more little meaning special here, what has for us light specific problem con- definite fronting presents way viewing another legisla- us here. Nowhere in action of the Recorder in the case at bar. history tive mention of the there passage The effect of the of 42 U.S.C. § Deeds, any specific Recorder of nor men- 3604(c) was to limit this discretion with applicability tion of the the act to regard to restrictive Before covenants. performs similar state official who what passage VIII, of Title there was no App.D.C., upon Recorder, 19. 24 the discretion who might still be allowed to record a deed (emphasis supplied). 20. Id. proscribed by with a condition Article points up 3(b). This VIII, course, discussion one difference After § Title Regulation, between the Police Article the discretion of the Recorder would be 3(b), Reg- § Title VIII. The Police limited to exclude such recordation. On ulation, by terms, hand, wording to- directed the other because of the ward the maker of the deed or the transfer of 45 it § D.C.Code still be property, of an interest in real while maintained that virtue of Article prohibits proscribed pub- 3(b), Title VIII lishing the Recorder is re barred from anyone. argued cording Thus can be a deed which violates the Police Regulation Regulation. supra, the Police has no effect See I.O. panel opinion has been careful feels coerced and intimidated opinion describe as “ministerial” functions.22 climate of which he lives. However, putting purpose behind the Fair That into reason legislative very clearly policy Act terms a national de- signed manifested, purpose, discrimination all fair end judgment, enough housing.” is broad to include activity District Columbia housing It is undeniable fair Recorder of Deeds. provisions primarily were toward aimed Congress was aware the measure estate, actual sales and rentals of real very reach, broad and in- yet it is rather to maintain inconsistent legislation deed the was seen as an at- statute, such a with the broadest tempt to alter the whole character of the objectives scope, apply and is to to housing market. fact is “The that private persons in the commercial market solely plainly discrimination is not publication in their notices sale of private dealing person the act of a with apply estate, real and not to an official property. his own Discrimination is primary pur- whose office for the exists problems based in such on matters pose publishing notices of the sale community prejudices operating whole parties real third estate to interested the will even of individual general.24 public and to the in property owner and of the individual that, real Of course it is true not, as one wit- would estate broker who within hearings stated, himself, ness at the perpetuate the statute want this kind of advertising housing noose, “outlaws is in who feels either a sense nature,” statute responsibility social or does much business to do something issue, more.25 the reach of the statute about That but who (Hereafter 1967) Hearings”), 22. This is more ber “1967 understandable when one housing provisions realizes that at fair 128. finally Rights were added to the Civil Compare Wright’s pp. Judge opinion, 24. Bill on the floor of Senate. These 634-635. provisions originally appeared in a dif- by 25. That statement made William L. was ferent bill which was voted never out of Director, Taylor, Staff U.S.Commission the Senate which considered committee Rights, Report on Hearings, Civil course of the 1967 it. While there is one House which 17, during supra, legislation, nothing- an ex- note deals with the it is change regard Ervin with with Senator more than a recommendation that the bill pass, meaning housing provisions of the words “oral or writ- and as the fair (which dropped), actually ten” were later words were voted out of a never Senate preceded “notice, committee, helpful which words state- there no is Senate Re- ment, port in or advertisement” that section of either. research has indicated Our ultimately legislative history bill helpful which became U.S.C. that the 3604(c). dialogue hearings The itself shows the which are here Senate refer- Ervin, statute as construed Senator red to. and was as follows: Testimony Braiterman, your of Marvin Senator Coun- Ervin: I invite attention (c) sel on to the Commission Social Action of subsection of section Judaism, representing Reform the Com- . . . Doesn’t that make it Race, Religion Synagogue prefer mission on unlawful for a sell a man testifying America, race, religion, Council of before the house to a man his own origin on Senate Subcommittee Constitutional or national than to others? Rights Judiciary Taylor: on the Mr. the Committee I think it adver- outlaws considering S.1026, tising which was Senate that is racial nature. bill ing provisions taken the fair from which were hous- Senator Look at Ervin: those “or’s.” ultimately They “and’s,” they were en- are not are “or’s.” lawyers Hearings say, acted. Before Subcommittee As we are in the dis- Rights junctive. on Constitutional of the Committee Now out the ones that leave Senate, Judiciary, on the States United immaterial. It makes it unlawful S.1026, S.1359, S.1362, S.1462, S.1318, on to make spect statement oral (Proposed dwelling and H.R.10805 rental H.R.2516 Rights Civil to the sale or of a Septem- 1967) (August preference Act of indicates based simply intent discriminate very broad demon- was intended to activity expressed. It is latter made Secre- statement strated a forbidden, the intent and even if Housing tary of Weaver: legal nullity, a is a it has discriminate proposal comprehensive This discouraging psychological effect prohibit discrimination housing purchasers, thus narrows financing rental, sale, certainly way market discriminatory including housing, Housing objective Act of the Fair advertising discrimination Virtually real eliminate.27 no estate representations to the availa made as place some transaction without takes housing bility of working one, usually title examiner “representations paying phrase emphasized, purchaser, a visit housing,” availability title. to check the made as to Deeds might applicable particularly to a re- there will affect the trans What finds action, deed, title what has been as the because is there strictive covenant put under the District of Columbia examiner looks a deed to deter- who mine, sense, as notice. is the whether statutes serve examining purpose Fair total sense and is “available” will be title Act that no discrimination shall examiner furnishes covenant. findings pur- prospective transactions; his to the it affect such real estate lawyer, chaser or his who makes dis thus that there shall be no follows availability evaluation of of criminatory representations at the office housing. of Deeds. “Neutral of Recorder repository” not, office of the intent not matter whether does part estate a vital of real ultimately successful to discriminate lawyer examining (the world, such, and, title will know office as the Recorder’s nullity), the restrictive covenant is from manifestations should be free origin housing race, color, religion, or national in it discrimination as pref- in intention to make has vital areas of American other erence. Doesn’t make unlawful so that more that life. It should enacted orally Negroes make for man to statement than 20 million American prop- in rental to sale or will attain the freedom other minorities erty prop- prefers they or rent that he to sell in wish to choose homes which erty race, religion, na- to a man of his live basis can to on the of what origin preference just in to that of a tional Americans do. afford — religion rebuilding another man of another race or cities our origin? [1967 or another national we eliminate cannot be successful unless including Hearings, 233.] of discrimination all forms Taylor dialogue, housing. in Mr. made in Later this Our non- discrimination proposed act about white must free to find their statements citizens say “I man that that a cannot homes in our central cities and our both print saying prefer ghetto T to sell statement suburbs if the enforced racial ” my man,’ rising think house to a white “I to be eliminated. The crescendo ghettos cries [the section] is intended refer in these out voices Tay- public statements,” showing housing. that Mr. conscience of better And the proposed long lor act to do more be at ease as understood America cannot advertising prohibit simply “is than a sector of its citizens continues to be opportunity equality in in nature.” denied shelter. if These must we are voices be heard Hearings, supra, note at 482 26. 1967 important prob- most domestic solve the (emphasis supplied). today. facing No lem valid America Secretary See, g., e. why the Statement of percent ten reason can be advanced Hearings, at in Weaver recorded the 1967 of our Americans should be de- fellow prived selecting 487: freedom of choice housing pro- I commodity, believe the [fair essential a home most bring up because should enacted visions] live and their which to the Federal Gov- time has come when children. policy a national ernment establish must appellants. racially C. Harm to such as discrimination covenants. question appellants whether the requisite Title construction VIII case have shown Our prevent support must harm to them an action of deeds also to the restrictive covenants similar be evaluated with reference congressional policy passing II of the broad construction of Title to the Rights housing provisions, fair policy Omnibus Supreme Bill which a “national Civil Paul,28 open housing Court used in Daniel [would] greatly people where the Court said: movement facilitate free from of racial the artificial barriers scope of t not follow that the [I] does restrictions.”31 con- Given this broad 201(b) (3) should be restricted gressional policy, this situation is objects Congress’ primary Jackson,32 unlike that Barrows v. reading its concern when a natural where the Court held that a homeowner language would call broader cover- rights persons could assert third age. light overriding purpose injured by racially restrictive covenant daily II move the affront Title “to which burdened the land. homeowner’s and humiliation involved in discrimina- Barrows, As in an occasion when tory denials of access to facilities underlying the reasons the normal rule general ostensibly open public,” denying standing to raise another’s . . [citation . the statu- omitted] rights outweighed by “are the need tory language “place of entertainment” protect rights” the fundamental of those given according should be full effect Congress sought protect whom meaning generally accepted ap- housing provisions.33 the fair plied to recreational areas.29 Just as the Court Daniel read II Title ability Even aside from their to assert broadly congressional to effectuate the however, harm to persons, third there is purpose, we think Title VIII should present appel- here actual harm to the congres- broadly be read effect they may themselves, lants assert. purpose eliminating racially sional in re- racially While it is true that restrictive housing strictive covenants from the market, enforced, covenants cannot be thus and activity and thus the Recorder’s might thought harmless, to be it is publishing in deeds comes within the premise nevertheless that it is the true prohibition of Title VIII. legislation under which relief is sought here “notice, that a Congress mere state- clearly As so has manifested ment, indicating or advertisement” VIII, its intent in we think Title that we preference, such may as we have in the statutory rest our decision on this bar, ipso case at ground harmful. Since any without need to seek a con- facto purpose legislation prevent is to particularly stitutional basis. This is housing, discrimination it must have where, here, Congress appropriate has by Congress any been assumed such exercised its role of constitutional “notice, statement, advertisement,” or “fleshing out” the Thirteenth merely by might publication, have by passage Fourteenth Amendments legislation.30 preventing persons appropriate effect of of some from Hearings, (Statement 298, 1697, 31. 28. at 395 U.S. 89 23 L.Ed.2d 1967 479 of S.Ct. Hart, sponsors (1969). of Senator one 318 original bill). U.S., 307-308, S.Ct., 29. 395 at 89 at 1702 (emphasis supplied). 32. L.Ed. 346 U.S. 73 S.Ct. 97 1586 See, g., Mayer Co., 30. e. H. Jones Alfred U.S., S.Ct., at L.Ed.2d See 346 Morgan, Katzenbach v. 641, 672, L.Ed.2d U.S. practice present housing regard under those office buying renting or with statutes, Act discriminatory Fair any “notice” to which such by accepted valid, standards 1968 is or “statement” been made. had decision-making judicial it is unneces- necessarily follows that since sary appellants’ constitutional to examine housing for is limited market such large part arguments so which form any persons by who exclusion Judge Wright’s rationale, and the renting buying prevented or from judgment of the District versal of the publication mere the discrimina- the tory statutory may rest on Court “notice, statement, or advertise- grounds.35 appellants ment,” homeowners such property in own connection who dissenting: Judge, Circuit TAMM, statement, “notice, or ad- which such a respectfully for the reasons I dissent published vertisement” has been my opinion the division set forth limitation in been “harmed” such a ap- court, hereto as an attached marketability homes. This of their pendix. buy is true whether such reluctance misapprehension as stems “a rent discriminatory effect” APPENDIX language simply part desire on TAMM, Judge: persons buy where Circuit of such not to or rent they appear to be unwanted.34 Appellants, in the Dis- homeowners Looking contain trict of whose deeds matter from a different Columbia at the covenants, brought point view, restrictive whose deed landowner suit District Court a against action does have a restrictive clause has class object appearance of Deeds reason to may There District clauses other deeds. Commissioner buyers prospective behalf on their own well be who would be Columbia1 of Colum- in on of all District uninfluenced racial considerations behalf similarly deciding buy situated. left to them- homeowners where to if bia They alleged published actions selves, without official maintaining along filing, input lines, accepting who those marginal give public influenced or induced records preference Amendment a home that such a of the Fifth violation Housing Act Fair deed. So far as the market is VIII of the effective and Title enough seq. concerned, gives buyer such a et if 42 U.S.C. 3601 preference the limited (1) sought following They relief: letting sense of deeds those restrictive rights in- were a declaration that their begins define the area where first to fringed by practice the the Recorder look at houses. recording accepting and in Deeds analysis racially filing containing If the public above District of the records statutes, injunction covenants; (2) of Columbia the Recorder’s an restrictive Judge Wright’s opinion, pp. 34. See 640- This makes clear that Commission- power grant 641. ers would to had appellants seek here. relief which particularly puzzling aspect party A of this As the issue failure neither raised appellants remedy is case did not seek to seek a from Commissioners coming court, however, relief or the Commissioners into and the before Mayor argued regular of the District of before Columbia both a case has been before coming panel banc, into the District Court. D.C. we are re- and court en provides pertinent part question Code § 45-701 in allow affect luctant to performance, by disposition that “The the Recorder our case. employees of Deeds and officers and his office, ap empowered of their duties and functions shall The Commissioner subject supervision point, supervise, and control control the Recorder. and (1967). (c) (a), Commissioners of the District.” D.C.Code 45-701 § accepting been

barring instruments as have such the Recorder from . on their filing any purport duly instru- executed, and which and deed instru- containing racially of the restrictive the nature be of ment a face to ”. Id. copies of . . providing and from to be filed. covenant ments entitled bars office short, clear- of the deeds or the nature such ly identifying instruments without In containing appellants void seek. them as relief which racially restrictive and unenforceable ministerial is a of Deeds The injunction covenants; (3) re- and authority ministerial of a officer. every quiring the Recorder affix to in- strictly construed to be officer custody notice that liber volume any racially a express- powers cluding con- restrictive covenants implied. necessarily ly conferred there- tained the deeds or instruments 141 F.2d States, Youngblood v. United void unenforceable. were 1944). as to (6th A decision Cir. containing denying re- requested a relief, In a to file deed whether granted appellees’ District Court motion discretion. involves covenant strictive Indeed, permit- dismiss, whereupon appeal not even the Recorder is First, typographical ex- er- noted. We shall affirm. obvious ted to correct par- despite amine the the office consent of all the nature rors proceed Recorder of Deeds and then thereto. ties statutory a discussion of the and consti- Furthermore, em- is not tutional issues. powered the statute to determine enforceability validity of a legality, I. Determining to be filed. document Congress provided Record- whether covenant in deed “ er of Deeds shall . . record all . legal covenant demands deeds, contracts, and other instruments judgment. Re- clerical staff writing affecting the title or owner- certainly knowl- corder edge, capacity does not have the ship of personal property real estate or perform or acumen to duly acknowledged which have been by appellants. tasks of them asked certified;” D.C.Code 45-701 many respects func In required “perform He is further all tion to that is similar the clerk requisite services connected with the du- Re court, The clerk like the court. prescribed” regard filing ties required accept corder is documents of custody charge instruments and to “have upon filed. It not incumbent him records, papers, prop- all signifi judicially determine the erty appertaining to his office.” D.C. cance of the tendered In re documents. (a) (3), (4) (1967). Code § 45-701 Halladjian, (C.C.Mass.1909); 174 F. 834 Interpreting shortly the statute after States, Bell, Kinney United to Use enactment this court stated: (C.C.E.D.Pa.1904); 127 F. 1002 State Undoubtedly, Sutton, recorder ex rel. Kaufman v. So.2d category officers, McElroy, (Fla.App.1970); of ministerial Malinou v. jurisdiction pass upon has no R.I. A.2d State validity writing Miller, instruments of ex rel. Wanamaker v. 164 Ohio presented to 176, 177, him for record. 128 N.E.2d St. quires no upon elaboration or the of law of court commented the function following authorities to sustain contention. this its clerk the manner: Dancy Clark, App.D.C. 487, duty court, is the the clerk of this (1905). in the absence of instructions the pointed although We out the Re- contrary, accept court for corder does have ministerial discretion filing any paper presented him, pro- to determine whether a document is of paper such vided is not or scurrilous type appropriate filing the by obscene, “[h]e properly prepared and is required the law and file receive accompanied by filing requisite fee. testimony, hearings, any of the debates and decision as to power to make The only depth paper find dearth submitted propriety of sharp legislative history person stands to file right aof or as court, appellants’ not contrast to shallowness paper is vested such position. of the The thrust statute clerk. clearly advertising in directed towards conservator a neutral Recorder is The place. principal As a wit market purpose and value The entire records. hearings ness at stated: “I think pre- preserves is that his office advertising outlaws racial in nat To presented to him. documents cise 2 Furthermore, testifying ure.” while power to do give what the Recorder substantially on a At similar bill former appellants viola- ask would torney catalogued Katzenbach General creating office, tion statute parties and acts the statute functionally distort the office was intended to cover. The Recorder is hydra-headed monster. into nowhere He stated: mentioned. though acts of the Recorder Even may nature, they applies housing ministerial in are The title to all impunity prohibits with statutes of violate discrimination on account they land, race, color, religion, origin nor contravene or national owners, property must therefore con- developers, We tract constitution. First, inquiry. lending brokers, tinue our we turn to the real institu- estate engaged tions, relevant statute. others all sale, financing rental, housing.3 or II. Housing Title Fair Act of VIII III. 3604(c) (1970), makes U.S.C. § Although the Fair Act of it unlawful prohibit 1968 does not the Recorder’s ac- make, print, publish, [t]o or cause tions, enjoined those actions must be if made, printed, published any to be notice, process are violative due statement, advertisement, clause of the Fifth Amendment. As sale or rental prohibited states are from racial dis- dwelling any prefer- indicates crimination the Fourteenth Amend- ence, limitation, or discrimination bas- ment, so District of Columbia and race, color, on religion, ed origin, or national agents, including its Deeds, Recorder or an intention to make prohibited from discrimina- preference, limitation, or dis- grounds tion on the of race the due (Emphasis supplied.) crimination. process clause of the Fifth Amendment. On clearly its face the statute does not Bolling v. Sharpe, 347 U.S. apply to the Recorder Deeds. The 98 L.Ed. 884 does not offer rent, sale or any way nor is he in con- Supreme The declared ra Court has nected with the commercial real estate cially void and restrictive covenants un merely market. He functions as a neu- Shelley Kraemer, U. enforceable. repository. tral “notice” The or “state- S. 92 L.Ed. 1161 ment” by speaks the statute of is that made question presented here whether agent the offeror or his in the mar- Deeds, by place. ket containing filing restric legislative history covenants, deprives appellants of con bears tive out interpretation. process. After a stitutional due careful search Hearings S.1026, Hearings S.1318, S.1362, Before the on S.3296 Subcomm. S.1462, H.R.2516, Rights H.R.10805 Constitutional Senate Before the Comm, Rights Judiciary, Cong., Subcomm. on Constitutional 89th 2nd Comm, Sess., pt. 1, (1966). Judiciary, Senate on the at 84 90th Cong., 1st Sess. 233 recovery state in- courts found insufficient prerequisite under A (1) private showing in discrimination volvement Fifth Amendment is a appellants (2) by a the Re- to constitute constitutional violation harm done merely played neutral state a elements where the find these essential corder. We part.5 lacking. find these cases most instruc- We tive. Deeds, impartial in action, giving thought as well as developed The most area of for our law approbation sub- of the state to the purposes is administration estates contents the deeds filed. The stantive probates If dis trusts.6 the state safety deposit Recorder, the cold steel criminatory through will the use merely industry, box of real estate legal machinery e., Recorder of Wills —i. preserves Although documents. he acts and Probate Court —the courts have held government, on behalf of he acts as government acting merely in studiously repository. neutral nonsignificant capacity neutral concept neutrality plays does an not constitute state action under important in role the Fourteenth or Fifth Amendments. constitutional law. government See United Where af- States National Bank v. Snod is under no obligation grass, 530, (en firmative to act and is mere- 202 Or. P.2d 860 banc ly neutral, 1954); process Gordon, 197, there can be no Gordon v. due 332 Mass. 228, denied, violation.4 In a related area 124 N.E.2d of the law cert. 349 U.S. determining 4. Government inaction as well as action in sider whether action state present. objec- result in a constitutional violation. The first' —immediate Wilmington Parking Authority, Burton v. tive act —and the third —historical 715, 856, existing prior 365 U.S. 81 S.Ct. 6 L.Ed.2d context and conditions (1961). However, government clearly inapposite. the act —are The sole duty purpose creating must have a act and the failure of the statute the office supported Recorder, to so act must in result state and the actions of the encouraged Recorder, discrimination. The in is to facilitate and insure the clearly inapposite. reality. stant case is safe transfer of The Recorder is repository. a neutral He is not advo- appears 5. State action cate. The second exist here. This factor —ultimate effect plaintiff brings is not a case where a suit the act—likewise indicates no state ac- private alleges Contrary appel- tion to discriminate. individual and private allegations state involvement lants’ no substantial discrimina- harm is plaintiff suing tion. Here caused the actions of the the state Recorder. asserting that the state is involved in See discussion in text. Clearly certainly then, discrimination. The case is un- the relevant factors set If, however, usual this sense. in Reitman we were forth indicate no state ac ignore analyze Furthermore, aspect this factor and tion. the ease the neutral governmental in terms of whether there is state action action which we have encourages private finding discrimination, px-ecludes discussed the text none, we would find the state action state action within the terms of complained merely of is Fourteenth Amendment Abney, See neutral one. Evans v. govern- 435, 628, 444, must be recalled that not all 396 U.S. 90 S.Ct. (1970) ; 6, mental action is state action within 24 L.Ed.2d 634 footnote infra. purview of the Fifth Amendment. The “significantly” many action must involve Neutral state involvement other private placed state racial discrimination. forms of discrimination have been Wilmington Parking Authority, scope Burton v. outside guarantees. of the constitutional 715, 365 U.S. 81 S.Ct. 6 L.Ed.2d 45 See Walz v. Tax Commis logical Any City York, This is a conclusion. sion of the New 397 U.S. open result would unfathomable 25 L.Ed.2d surely breaches, today gainsaid (1970) (religious exemption) ; it cannot be tax Black government Laboratories, is not to some v. Cutter 351 U.S. every (state extent (1956) involved facet of L.Ed. our S.Ct. clause) ; lives. court enforcement of contract Mulkey, Reitman v. Williams taurant, Res Howard Johnson’s 1959) (4th 18 L.Ed.2d 830 268 F.2d 845 Cir. suggested (licensing by Court state). three factors to con-

659 light 875, tion of the Fifth Amendment. In 947, 99 L.Ed. 1273 75 S.Ct. 162, agree. Horan, precedents, F.2d of the above we cannot 178 See also v. Wilcox analysis, In the final 1949). evil of (10th 165 Cir. appellants complain not in the office lies v. in Evans Speaking Court for the Recorder, the soul of man. 486, 296, 300, Newton, 86 S.Ct. U.S. 382 Appellants (1966), have also to demon- Justice failed 489, 373 L.Ed.2d 15 resulting strate harm rec- from the Douglas stated: racially ordation of cove- to leave a school If a testator wanted clearly These un- covenants are nants. only race or center the use one easily repudiat- enforceable way implicated the State and in no addition, ed.7 In these covenants do manage- control, supervision, constitute a title cloud on or affect argu- facility, we assume ment marketability property. theAs difficulty that no constitutional endo Judge learned District stated: encountered. would be stretching say far top If, however, administration in the presence language the offensive government takes or trust an estate custody t,he a deed by supervis role non-neutral active going frighten buyer. a would-be managing controlling, ing, there practicality must We face confines state action within the buyers begin negotiations do not their Pennsyl See Fourteenth Amendment. by examining the records maintained by the Recorder of Deeds. City Board Directors of vania v. func- That 230, Trusts, 806, 1 353 77 S.Ct. U.S. performed by brokers, tion is attor- Brown, (1957); Pennsylvania v. L.Ed.2d792 neys and companies insurance title (3rd 1968), 120 de 392 F.2d Cir. cert. making .Brokers, the record searches. nied, L. 20 88 S.Ct. lawyers companies and title insurance Ed.2d 657 fully racially are aware that restric- Abney, 90 In v. Evans U.S. tive covenants enforceable. 330 (1970) the Su- F.Supp. S.Ct. L.Ed.2d 634 at 448. preme found no state action in Court Appellants , nevertheless, rely upon Georgia application state court’s f Bryant State o Board Assessment of cy pres doctrine of to a discrim- Carolina, F.Supp. of North State inatory trust. Court reasoned (E.D.N.C.1968) and Hamm v. Vir enforcing Georgia merely court was ginia of Elections, State Board 230 F. standing “long trust laws were , Supp. (E.D.Va.1964) per aff’d regard and neutral with Id. at race.” l Woolls, curiam sub Tanci nom. sup- (Emphasis at 633. U.S. 13 L.Ed.2d 91 plied.) The court reached this conclu- proposition for the that where despite in- sion that a the fact state is records are maintained with unconstitu racially discriminatory volved trust tional identifications the mainte following ways: (1) at- state per requir nance unconstitutional se- torney general trust be- enforces the ing Appel no demonstration of harm. public; (2) super- half of the the courts lants misread these cases. In these probate vise the administration of the Negro cases state officials listed trust; (3) enjoys estate the trust separately voting, prop white citizens status; (4) exempt tax doctrine erty assessment and divorce records. cy pres as well other state statutes voiding laws, Bryant these court apply often to the trust. found that citizens were harmed because urge appellants In the instant ease opportunity ju discrimination the mere act neutral ry present. poten selection was No such deeds constitutes tial state action in exists Furthermore, viola- here. there is pay The homeowner need file deed corrective nominal fee. Recorder and a. V. classifies here which maintained

no list dissenting vigor re- by race, cove- for restrictive brother of our The individuals by out, persons reluctantly, point us, re- appear quires deeds owned nants Moreover, dis- of those failure to spectfully, in each his unfortunate of all races. compiled tinguish in this record the facts lists between were instances fluency of the rheto- action his self-created affirmative of and the maintained again do not have upon erroneous situation we he bases A ric his state. incanting By frequently “re- conclusion. here. covenants”, “constitution- strictive rights”, as if the al” and “individual IV. had some of mere utterance these words somewhat reach our decision We only power conclu- to dictate an secret luctantly. the law we reluctant in Not obviously sion, and com- the dissent is right; expound, for we know toit pletely situation of factual hubristic but, conclusion some reluctant in the There record confines which the us. draw, may interpretation others and the “governmental partici- is no evidence of pation may glean, our We firm- from decision. illegal an endeavor— in ... ly legal case to result in this believe , segregated maintenance of a . that the be correct. We convinced housing be- market” or Government nature of the office Re- ministerial illegal “co-conspirator coming an remedy sought. corder Deeds bars out, point Recorder, we scheme.” The as statutory can find no or consti- alsoWe circulating” “publishing nor neither tutional of the violation actions Recorder has racial covenants. The This, however, Recorder of Deeds. “policy il- made decision consider say remedy not to there is no for an un- legal, af- racist as documents merely fortunate situation. means fecting ownership of real title or remedy sought beyond ken of estate,” giving nor is he “deliberate judiciary. encouragement private dis- manifest put crimination.” The does Congress panoply power has a approval” “Government’s on the seal plethora well of resources at documents than the files more disposal legal machinery to create the judicial puts approval clerk of this court problem. to deal with this We note that accepts filing. on the documents he given the courts expansive read- Obviously filing of documents with ing Congressional power in the eradi- any manner, not in does cation -of discrimination from the fibre way legitimacy. means or their establish society. of our Mayer Co., See Jones v. Alfred H. These strained contortions of the mean- ing case, and nature of the record in this (1968); L.Ed.2d 1189 United States again practice illustrate the unfortunate Guest, U.S. of some members of this court of at- urge L.Ed.2d 239 gress We the Con- tempting far-reaching to wrench social gather together representatives changes regard facts, without among bankers, from brokers, title precedents particular case, law or in a companies insurance developers land disregard and in princi- absolute attempt for a serious at a solution. Re- ple separation powers. prac- covenants, strictive lieu, born of a racist mi- choosing tice philosophically eclec- exorcised the white-sheeted tic prec- rather than the established ghosts of a not too past, distant do not unfortunately pursuit edents ab- find favor with this court. We exhort stract liberalism for its own sake rather Congress to extricate the nation adjudication govern- than an of the law quagmire inequality by excising ing dangerous an individual case. these atavistic anachronisms from the courts, upon pretext illusion that the legends of our culture. ruling upon particular case person agreeably to law great un- ed sympathy and with articulate contracting party granting or therein derstanding upon social evils all of the title, in- right, implausibly nation, fashionable with rulings, described. therein judicial terest in the land in some areas economy [Emphasis resulting law. added.] horrible judicial proclamations, Somehow, these obviously requires This ecology, they medicine, economics, be political executing (signing) physical act of science, religion, rela- domestic acknowledg- having documents, and them presumably made crime, tions are ed, agreeable to the To read law. euphem- by using acceptable more it, particularly more into provisions in view rights”, “constitutional “civil isms as rights”, 45-701, justified. is not § “public in- “discrimination” and ques- my opinion It is that the deeds regardless terest”, fact that tion do conflict with the Fair of fac- the court is devoid record before Act, 3604(c), forth as set U.S.C. § judi- resulting supporting the tual data duty it above is not thereby legislation. That we evade cial pass legality on the of documents sub- legal particular in a situation truth recording, mitted with than self-justified, apparently in view is respect to form of their execution homogenized life-blood that we have acknowledgment. obviously for, society. praying Without improper language an extension of the dreaming issue, every of a consensus Recording place Act to this addi- regret suggested disposition upon Recorder; tional burden matter, this, or case for that on a office has fulfilled that never function basis, philosophical rather than a Also, equipped and it not to do so. easy respect while the task with MacKINNON, Judge, Circuit dissent- very to some deeds it can be difficult ing: to others intent where the Judge generally I concur Tamm’s purpose is obscure and borderline. opinion. my statute, It is view of the apply It would also to other restrictive provides which the “Recorder of zoning I nature. (1) . . Deeds . shall ... attempt Recording thus not to make the deeds, contracts, cord all in- and other obviously Act fulfill such unrelated and writing affecting struments in the title purposes. my mind, unintended To Con- ownership personal of real estate or gress enacting Recording Act, duly which been acknowl- legislatures same generally as state edged (D.C.Code and certified” 45- § throughout merely country, intended (1967 ed.) (emphasis added)), that provide public record of real estate essentially ordinary recording documents and it will abe ex- mistake to which, statute “shall,” use the word substantially tend its beyond functions requires the administrator of the office purpose. ministerially accept docu- record opinion majority “duly ments which acknowledged bases conclu- certified,” repeated sion on the generally assertion that it is without further in- illegal quiry. documents; but that is file proved merely asserted. At —it interpretation This changed time, when the record reflects that D.C.Code provides: 45-503 most illegal do not contain restric- The recorder accept shall not for rec- covenants, tive necessity I see no in- ord or record instrument dulge essentially judicial leg- in what is shall not be executed acknowledg- islation. Notes Rights Deprivation Equal B. Williams, (1962); 110 473 U.Pa.L.Rev. course, showing Twilight Action, 41 Tex. ac- mere state of State Of action,” equal (1963). these tion out “State insufficient make an 348 L.Rev. protection argue, de to dictate It must fails clause claim. also commentators pur- has in close shown the state action cisions cases. discriminating pose and effect unnecessary Fortunately, to me it is against an irra- identifiable class scholarly dispute, since this diate this See, g., tional or manner. e. invidious vaga close not a case. Whatever Lightfoot, 339, v. 81 Gomillion 364 U.S. margin, ries of at the “state action” 125, (1960). In cas- 5 L.Ed.2d 110 S.Ct. concepts core remain clear. When regula- involving es economic or social unambiguously directly state acts approaching fun- tion not sensitive discriminatory manner, it violates government rights, personal damental traditionally Fourteenth basic command need show Amendment. Commonwealth Cf. legit- action some rational state serves Brown, Pennsylvania Cir., 3 392 F.2d v. purpose in order defeat a claim imate 120, 125, denied, 921, cert. 88 391 U.S. Dandridge v. discrimination. See 1811, (1968). 20 L.Ed.2d We 657 S.Ct. 1153, Williams, 471, 90 S.Ct. U.S. 397 dealing are not here with a case where Compare (1970). 25 L.Ed.2d 491 Weber tangential is used to state involvement Surety Co., Casualty v. Aetna 406 U.S. & implicate private activity otherwise 171, 1405, 164, 1400, L.Ed. 92 31 S.Ct. See, g., e. action.” Burton v. “state Wilmington Parking Authority, supra; (1972). 2d But 768 cases one, involving alleged this discrimina- Simkins v. Moses Memorial H. Cone along lines, dif- tion treated racial are (1963); Cir., Hospital, 4 323 F.2d 959 scrutinized,” ferently. They “closely D.D.C., Kennedy, F.Supp. Green v. 309 see, g., Loving Virginia, e. v. 388 U.S. dismissed, 1127,appeal sub Cannon nom. 1, 1817, 11, 87 L.Ed.2d 1010 S.Ct. 2169, Green, 956, v. 90 S.Ct. U.S. (1967), scrutiny usually close this Lodge 26 L.Ed.2d 539 Moose Cf. legiti- balancing careful involves Irvis, 163, 172-177, No. 107 U.S. governmental purpose mate 1965, 1971-1974, 92 S.Ct. 32 L.Ed.2d 627 discriminatory effect of the state action. (1972). Nor it situa even facially govern balancing tion Frequently in which a neutral a diffi- policy trenching ment statute or effect operation, cult and delicate denying jus undeniably upon certain the functions situations does Erickson, supra; traditionally legislatures. tice. performed See Hunter v. supra. Mulkey, case, Reitman however, The Record our scale need nothing finely er official, attuned, of Deeds a state since there is Simply activities of office one are a all on balance. side Compare, g., Mulkey, Abney, (1969), e. Reitman v. with Evans v. (1970), U.S. 18 L.Ed.2d 24 L.Ed.2d 634 Erickson, Thompson, and Hunter v. U.S. and Palmer v.

Case Details

Case Name: Daniel K. Mayers v. Peter S. Ridley

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 30, 1972

Citation: 465 F.2d 630

Docket Number: 71-1418

Court Abbreviation: D.C. Cir.