Mahaley v. Cuyahoga Metropolitan Housing Authority

al., Plaintiffs, et Artie MAHALEY METROPOLITAN HOUS-

CUYAHOGA al., et AUTHORITY Defendants. ING

Dorothy al., et HARRISON M. Plaintiffs, HOUS- METROPOLITAN

CUYAHOGA al., ING AUTHORITY

Defendants. 71-251, A. C

Civ. Nos. C 72-67. Court,

United States District Ohio, E. D. N. D.

Feb. LaFond, Bauer, Atty., Depart- Huston, I. Thomas J. Robert for James U. S. Bissell, Housing Smeltz, Develop- Schneider, ment of Huston & and Urban Cleveland, Ohio, plaintiffs. States, George Romney, ment of for United Secretary Department Housing as of of City Debevec, Director, of Law Robert Development and of Urban United Euclid, Euclid, Euclid, Ohio, City of for States. individually Knuth, Harry as and J. Director, Euclid, DeVito, Mayor City H. Asst. Law of William Nick of Director, Hollington, Jr., Bretton, Harry J. Law Burkhart, Frank Richard L. Mayor City Chukayne, Eckart, Ralph Perk, A. of Milan J. Edward Joseph Cleveland, Panehall, A. Kosmetos, Mc- Frances Jaksic, John T. Michael Stanley Cormack, Joseph Lombardo, Zone, Frank E. E. Whalen and Michael J. Climaco, individually Zagorc, Gaul, E. members Theodore R. and as Michael L. Margaret Sliwa, City Mc- Kucinich, of of Dennis Council of the Euclid. Caffery, Harmody, Richard M. William City Loyal Director, Buescher, Law V. Franklin, Bell, V. James Charles H. Solon, Cleveland, Ohio, City of of So- Carr, individually of and as members lon, individually Price, William E. and City Cleveland, of of C. Council Kelley, Jr., Walter Mayor City Solon, as of of Kur- John J. Livingstone, J. Cleve- Fred pell, Marek, Lechner, John Vincent land, Ohio, Stolz, E. for Alfred I. Robert George Nierlich, Prasek, Ralph Albert C. Sweeney, Msgr. Carney, Francis Ber- W. Varga George Vondrasek, A. vidually indi- and Gwendolyn Hall, tha Falkowski and of and as members of Council Cuyahoga of the Board Met- members of City of Solon. Housing ropolitan Authority, J. Robert City Holtz, Director, Theodore S. Law Cuya- Fitzgerald, Director of Executive Heights, Heights, of Garfield Garfield Housing Authority, hoga Metropolitan Ray- Ohio, City Heights, of Garfield City of Cleveland. Stachewicz, individually as mond A. and Betty Mayor City Heights, CELEBREZZE, of of Before Circuit Garfield Judge, Bennet, Debelak, Eugene Judge, BATTISTI, P. and F. Frank J. Chief Judge. LAMBROS, Kidd, Lamatriee, Joseph Joseph M. District Maley, Malley, Ralph Munson Edward J. Henry Piwkowski, individually and and MEMORANDUM AND OPINION City of

as members of Council of Gar- ORDER Heights. field Judge: BATTISTI, Chief Director, City Boyko, of Andrew Law Parma, Parma, City Parma, Ohio, of These are consolidated suits instituted Petruska, individually M. John Mayor and as pursuant to 42 and U.S.C. 1981 City Parma, Francis E. invoking arising and under federal law Kisil, Dobbins, Mary Dunning, Paul S. jurisdiction pursuant to 28 court’s Evelyn Kopchak, Kuczma, Kenneth G. 1331(a). 1343(3), U.S.C. They and §§ Leary, Labutta, Lynn Victor George W. J. brought of all ten-1 behalf Roth, Novicky, J. Theodore P. applicants ants and low-income Stano, Stanley Sands, John F. P. Jerome ing, majority the vast of whom are Ne- Wojas Zielinski, H. ually and John individ- J. non-, gro, Association, and the Path City and as members Council profit corporation incorporated under of Parma. the laws of the whose Ohio Señor, Cleveland, Ohio, for principal Robert purpose is to the im- stimulate City Roman, Westlake, provement neigh- Alexander R. and related individually Mayor City and borhood conditions Cleve- Greater Westlake, Berndsen, Metropolitan Ebert William W. land Area. The defend- Nemet, Corley, Mang, Cuyahoga Metropolitan Elmer Morton P. ants are the Skelly, Housing Authority, William P. B. Samuel Walls which is a Wells, individually corporation James L. and as under Section 3735.- created seq. members of Council of of Westlake. 27 et of the Ohio Revised Code authorized, engage alia, to in the inter defendant suburban cities have declined development Agreements of low to and administration enter into Cuyahoga attempt perpetuate rent all areas with CMHA in Chagrin Township. County, except housing patterns, Falls Fitzgerald Negroes largely Defendant is the Director which would concentrate Cuyahoga Metropolitan defendant Hous- City within the of Cleveland. ing Authority. The members of the plaintiffs The named in C 72-67 are parties of Board CMHA are Negro applicants tenants or for CMHA capacities. defend- their official The public housing. and Counts One Two 71-251, Euclid, ant cities in C suburban substantially are identical to their coun- Heights, Parma, and Garfield Solon parts ter in C Three of 71-251. Count (suburbs) municipal are all Westlake complaint alleges this the number corporations Cuyahoga County, within agreed Cooperation of units to in the under of the established the laws State Agreement City of 1971 between the of Ohio; of Parma are all chartered. but inadequate Cleveland and CMHA is Mayors respective and Councilmen housing meet the needs for low income par- of the defendant suburbs are also Therefore, plaintiffs in Cleveland. ties defendants in defendant. The C pray judgment declaring entered be Cleveland, City 72-67 are the Mayor, of its that the failure defendant councilmen de- and Department Housing Councilmen. The “meaningful” Cooperation to execute a fendant and Ur- Agreement plain- is in conflict with Development ban of the United States rights by tiffs’ secured the Fourteenth (HUD) is created under the laws of the Amendments, and Thirteenth and that United States and the feder- administers directing this court issue an order housing public al low rent laws. De- City CMHA and the of Cleveland enter Romney Secretary fendant is the Cooperation Agreement into a new and HUD its chief executive official. properly which more reflects low income housing needs. seeking plaintiffs are a declara- (i) (b) tion that 42 1415(7)(b) provides: U.S.C. § has unconstitutional its face or as it Authority any “The shall not make applied. plaintiffs The named C (other prelimi- contract for loans than Negroes 71-251 are two and one White nary loans) or for annual contribu- require citizen of the United who States pursuant chapter tions to this with re- housing public health, low rent for their spect any housing project low-rent safety They represent and welfare. initiated after March class of low-income residents of the (i) governing body unless the Area, Greater Cleveland who virtue locality involved has entered race, both, poverty, of their or agreement pub- into an with the decent, unable to secure safe and sani- housing agency providing lic tary housing at rents can afford cooperation the local without the assistance of CMHA. The Authority pursuant to this plaintiffs contend that the local consent chapter.” 1415(7) (b) of 42 U.S.C. § Housing Department and Ur- (i) permits encourages gov- and Development upon application ban erning municipalities bodies of local public housing agency may pro- a local acceptance control the of low rent hous- acquisi- vide federal for the assistance ing directly and to the has led con- housing tion or construction low rent housing areas, tainment of low rent into designed housing to meet unsatisfied entirely almost within the of Cleve- provides, needs. 42 U.S.C. § land, Negro, predominately which are pertinent part: Fifth, violation Thirteenth and policy of the Fourteenth declared to be the Amendments to the “It is United general promote States Constitution. United States Count Two C employing of the Nation 71-251 the welfare contend that by preliminary credit, loan or an- ance either its funds and public chapter, nual contributions the local the several assist housing having lo- agency into a political entered States and their subdivisions gov- Agreement Cooperation recurring present cal un- to alleviate and erning locality body in which employment remedy and to the unsafe acquired or low-rent insanitary conditions and and 1415(7)(a), safe, shortage decent, constructed. U.S.C. § the acute and (b). The local sanitary dwellings families of low injurious character ensures that the low-rent . . that are . exempt federally safety will be health, assisted morals of the applicable and lo- from otherwise citizens of the Nation.” (42 1410(h)), taxes cal Specifically, Secretary of HUD is dwelling provision of additional authorized to make “to loans program in result units under the will housing agencies develop- to assist improve- corresponding elimination ment, acquisition, or administra- [the] dwelling insanitary ment of unsafe or housing.” tion of 42 low-rent locality. in the 42 units situated U.S.C. Secretary may 1409. The make an- also 1410(a). § nual local contribution contracts with plaintiffs agencies The contend the re- to ensure quirement (i) (b) projects of 42 U.S.C. low-rent character of § federally is unconstitutional both on and which 42 its face are assisted. U.S.C. by 1410(a). applied preliminary as it has been the suburban While loans are § designed, effect, permit defendants and the of Cleveland. to the local public housing agency develop These will be examined and ini- seriatim. plans acquisition tiate for low-rent Coop- The contend housing, annual contributions are in- Agreement requirement eration of local agency tended to assist amortiz- proc- consent on its face violates the due ing indebtedness, may its bond which be ess clause of the Fifth Amendment incurred in the actual costs of construc- the United States Constitution.1 acquisition. tion and land 42 U.S.C. §§ statutory It is clear that not all 1409, 1410. equal pro classifications are violative of guaranteed by tection housing program as either The low rent is Fifth or Fourteenth Amendments. based the determination of local Williams, agencies, Dandridge HUD, 1970 in v. 397 U.S. demonstrated 471, 485, 1153, 1161, 25 L.Ed.2d there a need 90 S.Ct. exists for low-rent (1970), locality being in the 491 Court stated: concerned “not ade- quately private enterprise”. met “In the area of economics and social 1415(7)(a). responsibility U.S.C. welfare, the does not violate jointly for this assessment rests merely Equal Protection Clause be community the local the local cause the made classifications ing authority. applicable If re- imperfect. If the laws are classifica quirements satisfied, Depart- are basis,’ tion has some ‘reasonable may upon application ment of HUD does not offend the Constitution sim pro- agency the local ply because the classification ‘is vide federal assistance means of nicety made with or be mathematical loans and annual contributions. practice in cause in it results some Lindsley equality’. In its Natural Car enactment of the v. United States Housing Co., 61, 1949, Act of bonic S. [31 Gas U.S. seq., Congress expressly condi- L.Ed. ... ‘A Ct. 369] provision statutory tioned the be of federal assist- discrimination will delegation plaintiffs’ arguments of movement re based on freedom unlawful jected. inability any transcript, reasona- ant’s state of facts afford a set aside if bly justify Illinois, it.’ may v. be conceived Griffin S. Maryland, (1956), v. Ct. 100 L.Ed. McGowan and a L.Ed.2d 393].” state law left to the which discretion of [81 appellate indigents court whether argument assumes appeal. counsel on guarantee protec- equal constitutional Douglas California, 372 U.S. merely tion is not violated because 9 L.Ed.2d 811 Other to be statute authorizes one citizen cases which have held that wealth has differently others, treated than suspect constituted a in classification course, subject qualification that Elections, Virginia Harper clude Board of does not establish an invidi- statute 83 U.S. 86 S.Ct. 16 L. 3 Ed.2d In addition the ar- ous discrimination. (1966) tax) (Poll and Boddie gument question not reach the does Connecticut, 401 U.S. en- whether an otherwise constitutional (1971) (Prepayment 28 L.Ed.2d 113 being applied in an unconsti- actment actions). costs divorce tutional manner. cases, however, These must be read protection, in Equal absent light Valtierra, of James v. discrimination, requires vidious Congressional enactment have that a (1971) plaintiffs, eligi . The who were statutory some reasonable relation objective public housing, ble for lenged cost chal purpose. statute is or This requirement the of Article capricious arbitrary, certainly not or Constitution, of the XXXIV California This consent and has a rational basis. requirement provided which that no that to ensure was project developed, could be constructed housing coupled with low-rent be acquired by any public body, or Act, provisions of the slum the clearance approved by until majority a of voters cooperative notion of and to buttress the locality proposed in the in which the de federalism. velopment was to be located. The Su plaintiffs that the not shown The have preme found Court that Article XXXIV 1415(7)(b) requirement of 42 U.S.C. § face, not, suspect did on its involve the suspect category or (i) on a is based category race, applied since it to all rights. face On its affects fundamental public housing projects, low rent and requirement this does not discriminate supported that since it was a rational Moreover, on it does the basis of race. basis, provision the was sustained. The not discrimination establish an invidious court held that the did evidence before it it is true based wealth. While support not the claim that the while law un- local consent is that face, seemingly was neutral on its it in housing program for the der minority. fact aimed at a not, facto, ipso es- poor, emphasizing recognizing this the does While Un- housing invidious discrimination. tablish an tradition of referen California legislative en- provide der some circumstances “. a da which . . citizens on discriminated questions public policy.” actments which have voice on struck of wealth been the basis have 402 opinion at 91 S.Ct. at California, 314 U.S. down. Edwards v. 160, indi of the court does seem to (1941) wealth, suspect per se, L.Ed. 119 cate that is not a it a which made invalidated state law context of con classification provision to assist a crime for an individual indigent stitutional examination relating a entering The the State. or assistance wel Hackney, en- criminal law has those fare. v. eradicated See Jefferson U. appellate review actments which denied S. Hunting- grounds (1972) ; English solely defend- v. Town cities, stat- 1971); (2d suburban Cf. ton, Cir. F.2d suspect classifica- ute has established Chidsey Guerin, F.2d 584 result. this tions have caused 1971). which Cir. plaintiffs such a The have not shown their fun- contend that relationship. It is true cause effect rights been violated. damental They Rights have insist- Acts that Civil recent is a not that there do contend person ed should denied the that be sanitary housing, right to safe and pro- any federally assisted benefits Normet, Lindsey gram race, color na- on (1972), but rather L.Ed.2d 36 origin. tional 2000d right fundamental there is Rights 1968, 42 Act of Civil city. Those inner outside the pol- seq., national 3601 et established a characterized which have been interests icy against sale or quite few. To date as fundamental are result of these rental of enactments, As a right not ele- has been asserted here charged has with HUD fundamental to the level of a vated guaranteeing responsibility simply categorizing right. However, projects by it assisted do not foster ra- is not as a human need basic Weaver, segregation. cial Hicks v. application of strict sufficient call F.Supp. (E.D.La.1969); Shannon carefully judicial outside review 1970). HUD, (3rd 436 F.2d 809 designed parameters which integration policy This national rights. set for fundamental has Court necessarily housing patterns is in- cooperation. consistent with state While denied spite of this can may cooperation housing subsidies, of local only the federal partially be at least people, inconsistent at low are directed policy not, HUD, the new per se, that does any local consent. require kind of suspect establish a classification whenever direct result ground. sign either racial or Coopera economic city refuses suburban Therefore, it seems this law is neu- per poor Agreement, the bulk tion However, may tral on its face. nearby have residing urban center in a sons manipulated improperly. effectively excluded from resi will be true in that While it is dence suburb. Having 42 determined that U.S. rent law that if the federal low specifically 1415(7) (b) C. is constitutional both on § Negroes could applied, and as find no fur face we neighborhoods, there not live White questions ther which are to be question the as to unconsti would be judge heard this three court. The tutionality enactment, Reit of such an question con of whether the defendants’ 369, Mulkey, 87 S.Ct. man provisions duct violated the of 42 U.S.C. Shelley 1627, (1967); 18 L.Ed.2d 830 proper 1983 is not a matter Kraemer, 92 L. 334 68 U.S. S.Ct. judge Therefore, three court. without (1948), is Ed. 1161 that case not before reaching any of the mer determination the Court. The result 1415(7) (b)(i) Section complaint, its of Two of Count each this necessarily not racial is court remands consideration those racial of this discrimination. The statute, effect Judge claims to Chief Battisti. Frank J. any, if is not caused the stat Swank, (W. F.Supp. 268 Metcalf v. 293 by municipal ute itself but action rather Ledesma, Ill.1968); D. Perez See may or inaction which have used this U.S. 27 L.Ed.2d provision protect its in as a shield to integration from in habitants summary judgment en- Therefore shall Negroes. come ter One of .for the on Count defendants judge panel argument complaint. each The three The the presented merely is of these and the remainder be- dissolved have assumes Negroes are remanded do in consolidated cases cause low income not live originally ality judge to whom the case was statute and then re- first Judge assigned, Frank Battisti. mand the remainder. Chief J. dissenting from the dissolution

It is so ordered. three-judge court, present my the will I findings concerning the claim of dis- Judge (dissent- LAMBROS, District may crimination I think because ing). only question three-judge which the remand the decision to I from dissent However, court should have reached. Judge for his Battisti to Chief this case since the Court ruled that the Local has single judge ruling claim aas requirement Cooperation deci- from the discrimination and constitutional, also comment on will Agree- the Local sion that broadening inadvisibility doc- in 42 ment Valtierra, trine of James v. 402 U.S. 1415(7) (b) (i) is constitutional. 91 S.Ct. three-judge dissolution of uphold (1971), to that statute. justifiable from either court judicial economy point or the of view of I. INVIDIOUS DISCRIMINATION * disposition orderly of this case. BY SUBURBS three-judge already has heard the court A. THE TEST relating evidence both the claim protection equal Under clause the statute is unconstitutional and Fourteenth the Con Amendment claim that defendants discriminated. Rights Acts, state stitution and Civil Therefore, three- the dissolution municipal prohibited are officials ruling judge court on the con- after acting perpetu intent of from with the stitutionality prior to of the statute and patterns ating of racial ruling on the claim of racial discrimina- Mulkey, U. Reitman v. timesavings. tion does result 380, 381, L.Ed. S. 82, 90, Ledesma, Perez v. See 2d 1983. Since (Stewart L.Ed.2d publicly that seldom admit the officials concurring); Florida Lime and Avocado racially motivated, their acts Growers, Jacobsen, Inc. v. developed test have methods courts in order or refusals act acts certain (1960). Moreover, this could have case discriminatory intent whether determine orderly been decided a more fashion exists. practice of without dissolution. exam- avoiding rulings constitutionality particular the courts the In on first, ined, has a racial- the act whether of a federal statute rea- where relief can second, and, discriminatory sonably granted reaching ly effect without legitimate ex- question consistently nonracial there whether is is one sanc- v. Er- by planation In Hunter for the act. tioned United Court. 557, 385, L. ickson, 21 Thirty-Seven Photographs, v. 393 U.S. 402 States example, (1969), 369, 1400, 363, Ed.2d 616 91 L.Ed.2d 28 S.Ct. emphasized (1971); examine Benson, the need to v. 822 Crowell 285 U.S. Court 62, potential impact of an ordinance 52 76 L.Ed. 598 S.Ct. appeared (1932). case, possible to be mentioned race but it is that which this discriminatory its granted on requested neutral rather than the relief could be general finding upon there was no with- face and which of discrimination reaching legislative purpose. least five cir- question At out of the consti- However, that, principle tutionality adopted the statute. cuits have though seemingly by orderly disposition precluded neutral even act is this race, if mention on face and does not the decision to rule on the constitution- its upon the case defend- relief and therefore would dismiss as to I find no which order City of ant Cleveland. 1252 government. and financed results it Furthermore, suburbs give a reasonable fail to if the officials pressed occasions on numerous were it, consti the act reason for nonracial regard. That this their decision in viola

tutes invidious discrimination withholding of viewed their Amendment. the Fourteenth tion of Dailey negotiations Cooperation F.Supp. City Lawton, 296 v. action is thereto as affirmative related (W.D.Okl.1969), F.2d 425 aff’d by_remarks by in de- officials evident 1970); (10th v. Crow Cir. There, Mayor both the fendant (N.D.Ga.1971), (Parma) Brown, F.Supp. spoke of the and President of Council (5th 1972); Ken aff’d F.2d 788 Cir. housing and, public need to exclude City nedy Park Homes Association v. City Coun- the case of the President (W.D. Lackawanna, F.Supp. 669 cil, moving keep into the blacks from (2d N.Y.), Cir. F.2d 108 aff’d 436 way suburb denied, 1970), cert. Haw words, In other the refusals of de- Shaw, Mississippi, 437 kins v. Town negotiate fendant suburbs a Local Co- 1971); (5th v. Banks F.2d 1286 Perk, Cir. operation Agreement were not within (N.D.Ohio F.Supp. 1175 analogy past of one who walks (6th 1972), Cir. F.2d 910 aff’d 473 drowning person but were more akin to Spanish 1973) ; Alameda Southern Organization analogy pre- of one who a life holds of Union Speaking drowning person and, server over a California, City, 295-296 424 F.2d consideration, drop decides it. Chicago 1970); Gautreaux Black, Action, Equal See C. Pro- F.Supp. Housing Authority, Proposition tection and California’s (N.D.Ill.1972). importance (1967). 81 Harv.L.Rev. The de- sit aptly demonstrated doctrine is fendant suburbs who could have effort- presented. here uation lessly permitted development of low preferred but INACTION B. ACTION OR prevent it must be said to acted af- urge the Court The defendant suburbs firmatively. Loving Virginia, See negotiate refusal to to characterize their 388 U.S. 87 Agreement, the Local funding prerequisite is to federal under low income C. RACIAL DISCRIMINATION 1415(7) (b) (i), it as mere inaction which discriminatory. claims could not be existing A brief examination of unnecessary However, to rule ing patterns and the racial characteris- question municipal inac- of whether tics of and defendant suburbs tion can be reached under the Four- discriminatory demonstrates the effect teenth the refusal Amendment because to ne- defendant suburbs’ refusals clearly in this case constitutes affirma- gotiate. Cuyahoga County segregated tive Town of action. See Hawkins v. racially, ninety-seven per cent Mississippi, Shaw, 461 F.2d residing population black four 1972). municipalities. The defendant suburbs fifty examples action of the defendant mu- are of the more than spending nicipalities predominately populated by suburbs was not actual construction, case, popula- the for as be would surround the black whites which example, in the failure to a school. build tion. Four of suburbs are the defendant approval white, All per that was needed the the 99.1 to with 99.8 cent plans per for being made CMHA defendant fifth cent white.1 suburb 95.5 Heights per figures 95.4 Garfield is cent white. These are Cleveland. However, all but two of its black resi census. based on adjacent dents in an live area Plaintiffs, seeking suburb, plaintiffs to live in within each who are still suburbs, predominately are were able to show that the need existed. defendant appli- presented per They expert testimony cent of the In black. family recipients and 73 effect that for units were black numerous welfare cants elderly applicants already living per cent of both within each were suburb adequate family The de- unable units black. to afford were negotiate a refusals to fendant suburbs’ 2. Loss or Gain in Revenues. Under thus have statutes, both state and federal low in- integration preventing had the effect of exempt come from through the lo- of the defendant suburbs state and local taxes. 42 U.S.C. § housing public these sub- cation of in 1410(h); Ohio Rev.Code In 3735.34. urbs. taxes, housing project pays lieu of have, per suburbs should cent of shelter Defendant rents to the housing segregation taxing light existing authority. public Id. hous- predomi- ing projects plaintiffs must, statute, that are under and the fact pay black, municipality nately refusals that their for all realized services at racially discriminatory housing private proj- ef- the same rate would a have However, they 1410(i). did not advance an ects. 42 fect. explanation merely but for such refusals gain municipali- or tax loss solely the refusals were not claimed that ty public as the result of low income racially motivated. housing located there will therefore de- contrast, pend per not did rest In on the difference between discriminatory racially on the cent of the their case shelter rents and the taxes of ex- the lack effect of the refusal and which would have resulted from al- They planation. question. showed further ternative When, use the land plausible public housing, rea- nonracial there was a without undeveloped, defendant suburbs’ refusals. son for land would be would be particular, church, showed that a need used for a or other tax ex- street public function, empt existed and low income or would less effec- be assume, tively developed, municipality reasonable to it was not would negotiation, gain the construc- without as the of a low in- revenues result public Thus, example, development. tion of come developed properties to the subur- result a loss revenues the CMHA community permitting higher yielded it. ban after Cleveland revenues prop- development their had those than must, 1. Need. The need for prior development. erties for racial- under ly 1968 Executive Order gain dependent housing, Because the loss determined site scattered many variables, possible on so it is not metropolitan 24 C.F.R. Ch. basis. net loss would Using to determine whether a site II, Part the scattered 200N. negotiating re- need, City result without first definition of Planning the Cleveland spe- gard specific parcels of land and fixed need Commission Thus, housing projects. County cific kinds the number of the units, varying and listed prospect in this of loss revenue 158 and between the de- case could have motivated needed within each of the negotiate refuse to testimony fendant suburbs suburbs. That was substanti- Coopera- signing of a Local toward the approximately fact ated Agreement. persons presently tion qualified waiting list for low income not ad- suburbs The defendant ing persons pre- many and that of these negotiate refusals their mitted that fer suburban locations. However, racially motivated. clear case argument, presented is a

Assuming purposes situation there áre While however, discrimination. that need must be determined duty promote prospective a to racial tenants and affirmative a few white of, integration percentage part on the the federal of blacks within fraction a sig- government. suburbs, the situation nificantly black. one of white versus government In the federal had repeatedly The defendant suburbs integra- legal duty promote to racial only sign Cooper- refused not to a Local then tion. federal authorities were negotiate to ation but even permitted segregation to stand while They with only have not defendant CMHA. perpetrated by Bradley others. compelling failed to state reasons Richmond, School Board of Vir- refusal; to for such a have refused D.C., ginia, F.Supp. 67, 217, rev’d on give any Moreover, appears it reason. grounds (4th other 462 F.2d 1058 Cir. plausible that no non-racial reason ex- 1972). fact, In until 1962 federal offi- ists. object cials did not housing when local planned develop- authorities D. STATE ACTION racially segregated ments on a basis. F.Supp. 219. at finding dis- have made a 1949, Since the Court ruled has However, bring crimination. order governments encourage may local defendant suburbs patterns the continuation of Rights of racial Act, 42 within the Civil U.S.C. § segregation. Erickson, Hunter v. necessary 1983, it is also to find that the S.Ct. lo- acted under of state or officials color (1969). Furthermore, under the Fair Carter, cal law. District of Columbia Housing ofAct 1968 and the amendment 409 613 programs of federal assistance in therefore, (1973). necessary, It is government the federal has an af to deal contention that with defendants’ duty plan firmative to foster and inte their the federal acts were sanctioned grated housing. 42 2000d requiring §§ statute Local seq., seq.; HUD, 3601 et Shannon v. Agreement prior funding, 42 (3d 1970); F.2d Brown, Cir. Crow v. (i), (b) rather than local law F.Supp. 382, (N.D.Ga. purview and thus not within the of § 1971), (5th aff’d 457 F.2d 788 Cir. major 1983. The error with this conten- 1972) ; Romney, Gautreaux F.2d interpretation tion is that it rests 1971). 735-741 1415(7) (b) (i) passed when it was § interpretation in 1949 rather than the Thus, 1415(7) (b) (i) if is read to § today which must be followed after sub- preserve light changes init legislation sequent and court decisions by implication, amendments it would rights in the civil field. negotiate sanction a refusal Cooperation Agreement which was general rule, As a when federal stat- nonracial in and which con- character legislation ute conflicts with later integra- duty sistent with the to foster judicial interpretations with stitution, of the Con- present interpretation tion. Under its it duty the courts are under a could not does not sanction de- light prevail- construe the statute fendant suburbs’ racial discrimination. ing law, fairly possible, where so that Thus, the defendant suburbs’ refusals may preserved. United States v. authority offi- were under their as local Thirty-Seven Photographs, 402 U.S. and therefore under color of state cials 91 L.Ed.2d 822 purview so law as be within the Benson, Crowell v. 76 L.Ed. case, major legal E. development CONCLUSION since 1949 enactment here shows that the de- The evidence 1415(7) (b) (i) acting suburbs, has been the creation of under color fendant housing. public negotiate velopment income law, of low to refused have local Agree- doing, emphasized Cooperation that signing In so the Court a Local dealing legislative hur had the ef- it with a have Their refusals ment. only public required income dle of low preventing the construction of fect badly housing housing predomi- rather with a constitutional but for needed legisla required the same nately applicants seek resi- scheme which who black leg many away squalor cen- other kinds of the tive hurdle from the dence tragic islation, listed were city. effect several which In face tral nego- opinion. at refusals Court suburbs’ the defendant tiate, legitimate also 1331. See Sisters advanced have Mary City of and, the evidence Prov. of of Woods v. from reason St. nonracial (N.D. Evanston, F.Supp. 396, appears none exists. presented, it Ill.1971). The Court stated: segregation of racial community. The effects “Furthermore, of Cal- an examination predom- destroying persons advo- ifornia law reveals becoming inately city a black inner cating housing have not low-income high poor crime and concentration singled mandatory refer- out for permits such acts If the Court schools. group no other must endums while in this case to of the defendants as those face that obstacle.” 402 at alleviating any progress block 91 S.Ct. at 1334. effect, will, ghetto, all those it license political barriers to erect who are able contrast, Cooperation In the Local ghettos a themselves and the between Agreement requirement which is at is- housing practice dis- away to few blocks public unique here is income sue low guise under the of local au- crimination federally-assisted hous- Those perpetuate tonomy the racial divi- and to ing programs not for in- which are low community. For reasons of our sion persons require ap- come do not a local above, I would rule stated 1709(b), See, g., proval. e. 12 U.S.C. §§ law, suburbs, under color local (h), (i), (m); 1715e, 17151, 1715m, against plaintiffs on the discriminated (federal z-1; u, y, 1715n, z, and 1713 refusing negotiate of race mortgage homeowner insurance Cooperation which is Local mortgage subsidy programs); 12 U.S.C. 1415(7) (b) required under 42 U.S.C. § elderly (loans housing 170lq (i). handicapped); 38 U.S.C. §§ (housing for veter- subsidies federally-assisted ans). II. THE CONSTITUTIONALITY OF programs persons for low income re- LOCAL COOPERATION AGREE- cooperation quire approval local or a REQUIREMENT MENT (a) agreement. (2) 1421b presented by crucial issue (leased housing); 92-383, 86 P.L. Stat. challenge constitutionality of the (rent supplement); 42 U.S.C. require Cooperationg Agreement demonstration). 3304(b)(1) (city applicability ment is the of the doctrine approval is re- The fact local Valtierra, 402 U. announced James quired S. mildly cynical per- require even a doctrine does believe that the general legislative pur- son doubt apply at issue here to the statute Moreover, pose requirement. of such a uphold and should not be broadened for the re- when the reasons advanced it. quirement is evident are examined Agree- that, first, Valtierra, the Local In James that a lo- validity ment is not to insure upheld of California Court for low income cal determination of need re- constitutional amendment fact, local approve made. quired the de- referendum 1256 ing discriminatory purposes. body, housing authority, racially had makes the local Lawton, Dailey F.Supp. prior City to v. of 296 of need

such determination (W.D.Okl.1969), F.2d applying 266 aff’d 425 for funds. 42 U.S.C. § (10th 1970); (ii), Second, (b) (iii). Crow 1040 Cir. Brown, (N.D.Ga. Agreement necessary F.Supp. 382 v. 332 is not estab- (5th pro- 1971), exempt 457 F.2d 788 Cir. lishment status aff’d of the tax 1972) ; Indeed, Kennedy Park Homes in Associa vided the federal statutes. City Lackawanna, F.Supp. exemption tion within the of 318 such Housing v. (2d (W.D.N.Y.), F.2d 669 aff’d 436 108 and reaffirmed state Act 1970), ; denied, 1410(h) cert. 401 statute. 42 Ohio Cir. Third, Rev.Code 8735.34. slum Shaw, Mississippi, v. provisions Hawkins Town of clearance of 42 U.S.C. § largely 1410(a) (5th 1971); 437 F.2d 1286 Cir. v. rendered moot Banks (N.D.Ohio rights F.Supp. legislation Perk, civil and the “scat- 1972), (6th pub- aff’d F.2d 910 Cir. tered site” orders which mean 1973) ; Spanish in lic will more often be located Southern Alameda municipalities Speaking Organization City suburban no where slums v. of Union seq.; City, 2000d, California, et exist. F.2d 295-296 U.S.C. §§ Fourth, 1970); II, Chicago 24 C.F.R. Part 200N. Gautreaux v. Ch. Agreement Housing Authority, F.Supp. con- does insure the (N.D.Ill.1972). municipality accept sent of the lower payments services, municipal because legislation Because at issue here public housing projects must, under holding does not come within the law, pay municipal services Valtierra, upon James v. it is incumbent just private developers. 42 U.S.C. § advisibility the Court to consider the (i). Finally, it would be unusual applying the in doctrine announced Val- require simply because tierra, legislation clearly classi- receipt per paid of ten cent of rents poverty fies places by public housing rather than taxes legislative only an extra hurdle for those may in some instances result loss seeking who are low income developing Those tax- revenues. other ing. oppose any broadening such exempt uses, churches, fed- such as land doctrine, the Valtierra because I believe buildings, universities, eral do not that it would render the courts ineffec- sign agreement although such an those tive policy to enforce the national ra- yield payments uses and no taxes integration. cial general Thus, lieu taxes. there is no legislative purpose justify past, In the enforcement of racial in- Cooperation Agreement in tegration this case. possible through has been striking down racial classifications for public housing Because compelling which there was no in- state provides large percentage for such a recently, terest. however, More as the compared popula- blacks when with the result of more subtle means discrimi- whole, tion as a the added obstacle being adopted, rights nation civil en- low income assists locali- forcement has focused statutes excluding ties low income group acts which the treated differ- persons excluding but also in blacks.2 ently mentioning is described without frequent use of the accomplish discriminatory race to re- local consent to exclude is evi- blacks Thus, example, sults. the southern below, denced the cases listed voting replaced prohibi- districts which federal courts found that locali- literacy tions with were tests and these trying prohibit ties down, low income hous- struck South Carolina Katzen- Problems, Building (U.S. National Commission on Urban The American Govt. Printing 1968). Office bach, 15 L. (1966); Lassiter North Ed.2d 769 al., Plaintiffs, Artie MAHALEY et Elections, ampton County Board 1072; 3 L.Ed.2d CUYAHOGA METROPOLITAN HOUS- voting were and these fees and with al., ING AUTHORITY Forssenius, down, Harman struck Defendants. L. 544, 85 gerryman Ed.2d and with Dorothy al., et M. HARRISON down, dering this was struck Gomil Plaintiffs, Lightfoot, 364 U.S. 81 S.Ct. lion v. (1960). Employers 5 L.Ed.2d CUYAHOGA METROPOLITAN HOUS- replaced restrictions with intelli al., ING AUTHORITY gence down. these were struck tests and Defendants. Griggs Co., 401 U.S. v. Duke Power 71-251, A. Civ. Nos. C C 72-67. 431, 432, Court, United States District matter, (1971). Local In a similar Ohio, N. D. E. D. Cooperation Agreement re Feb. 1973. municipali placed permitting policy of race with

ties to exclude basis permitting

one exclusion

poverty accomplish same result. —to agree conclusion, I with the dissent- it is who warned

ers Valtierra day” provisions

“too to treat late classifying poverty in on the basis benign totally tech- field as

nical economic classifications which judicial subject to

should not be close recog-

scrutiny applied to areas unless Supreme nized Court as “funda- (criminal rights” proceedings,

mental

travel, divorce, voting, privacy). integration metropolitan housing, government cannot effective-

schools and ly and, accomplished independently al-

though integration has not been right” by “fundamental classified as a certainly Court, basic Lindsey peace equality.

to racial Normet, To fail scrutinize

L.Ed.2d 36 poverty classification when frequently

it is used subvert so the Fourteenth

courts’ efforts to enforce ignore used the means

Amendment is in this communities white suburban ex- from their to exclude blacks

decade within the nation’s met-

clusive enclaves Therefore,

ropolitan areas. uphold the Co- Valtierra

extend

operation requirement.

Case Details

Case Name: Mahaley v. Cuyahoga Metropolitan Housing Authority

Court Name: District Court, N.D. Ohio

Date Published: Feb 22, 1973

Citation: 355 F. Supp. 1245

Docket Number: Civ. A. C 71-251, C 72-67

Court Abbreviation: N.D. Ohio