Yvonne C. Edwards v. Nathan Habib

purposes FTCA, Congress of the de jurisdiction Federal has of the under the govern “Employee rather, fined is, instru- of the [federal] but Government including acting “persons ment” as On mentality the D.C. Government. agency behalf of a federal capacity, temporarily in an official papers District Court alone the these permanently in granted the motion. States, the service of the United whether immediately placed appellant Had been compensation.” with or without 28 U. prison, the in a federal after sentence have, S.C. The cases 2671. on occa complaint a cause have stated sion, regarded agen D.C. Governmental Muniz, 374 U.S. United action. States agencies” purposes cies as “federal 1850, 10 L.Ed.2d FTCA, depending upon the amena tempo then, is, his whether bility agencies of such to federal control.2 rary pending Jail commitment to the D.C. persuaded by anything ap We are not appeal relieved the outcome of his pearing Attorney record that the any responsibility for States United was, kind, General of this matter during allegedly neglectful treatment wholly lacking any capacity to assure facility. stay particu More his larly in that proper prisoner care of a for whose whether, because Con issue is custody primarily permanent he was gress Attorney authorized the General ly responsible. Jail for incarceration use the D.C. prisoners custody, Reversed. federal in his and the them, Congress D.C. receive Jail to having suspended for the taken as being availability appellant

time

of the Federal Tort Claims Act. claimed

We think not. It is not of meaning Fed the D.C. Jail is a contractor EDWARDS, Appellant, Yvonne C. eral Government within the exception the contractor of the FTCA.1 clearly HABIB, Appellee. Since committed Nathan custody safekeeping

the prisoners of federal No. 20883. Attorney upon conviction to the Appeals United States General, then in this it must be true that District of Columbia Circuit. serving jailer instance the D.C. Argued Jan. Attorney jailer; General’s true, must also be appear or at least does May Decided contrary in the record be Rehearing Petition for En Banc that, prisoner, us, fore as to this federal July Denied Attorney degree General had some power, continuing with his commensurate

responsibility, supervise jail the D.C. handling particular pris

er in his of this regard that,

oner. We note in this cert, purposes FTCA, denied, 1. For 28 U.S.C. D.C. provides § 2671 follows: 6 L.Ed.2d 235 Agency” “Federal includes the ex- and see also O’Toole v. United military departments, States, 1953). (3rd ecutive de- Cir. partments, independent existing establishments None of the cases relied States, corporations of the United primarily acting either or the Government closely related, as instrumentalities or un- leave agencies but does touched what be surmised be the Attorney include contractor considerable influence of way United States. General over the D.C. in which the prisoner placed Jail treats a federal specifically there 2. Goddard v. District of Rede- Columbia the convenience of the velopment U.S.App. Agency, Attorney Land General. Judge, Danaher, Circuit dissented. Olmstead, Brian

Mr. Michael Des Moines, Iowa, Florence Mrs. with whom C., Wagman Washington, Roisman, D. appellant. brief, was on the Washington, Miller, D. Mr. Herman C., appellee. Corpora- Duncan,

Messrs. T. Charles of Colum- Counsel the District tion bia, Pair, Principal B. Asst. Hubert Corporation Counsel, and Richard W. Sutton, Asst. Cor- Barton and David P. Counsel, poration on behalf filed a brief amicus of the District of Columbia curiae, urging reversal. Robertson, III, B. Wash-

Mr. Reuben C., ington, D. filed a brief on behalf Capital Civil Liberties the National Area Defense and Fund as amicus Education curiae, urging reversal. Wright Before Danaher, McGow- Judges. an, Circuit Judge: WRIGHT, J. SKELLY Circuit appellant, Mrs. March In prop- Edwards, rented Yvonne Habib, erty appellee, Nathan Shortly basis. month-to-month Depart- complained thereafter she Inspections of san- ment Licenses itary her landlord code violations which remedy. course In the had failed ensuing inspection, than 40 more such violations were discovered which Department cor- ordered Ap- Court of gave District of Columbia Mrs. Edwards then Habib rect. peals, we and on December statutory 30-day to vacate notice1 granted stay, provided Mrs. posses- judgment default obtained a pay her rent. Ed- continue Edwards Edwards premises.2 Mrs. sion of Habib, U.S.App.D.C. judgment, reopen wards v. promptly moved to neglect appealed alleging F.2d 628 She then for the default excusable judg- DCCA, alleging which affirmed as a defense and also given A.2d for ment the trial court. quit retaliation notice to reaching its decision complaints authorities. earlier sitting in the of its Greene, relied on series on motions DCCA Sessions, the holding set aside private landlord Court of General that a decisions thought- and, very judgment in a default required, the District was not retaliatory a opinion, that ful concluded give for Code, a reason to Columbia a motive, proved, constitute if would evicting tenant a month-to-month possession.3 to for the action defense any or for reason to do so was free itself, however, different At a the trial all.4 The court acknowl- no. reason at judge apparently deemed evidence edged termi- to landlord’s that the retaliatory directed motive irrelevant absolute, tenancy felt but nate is not a the a verdict for landlord. prerogative any on his limitation that appealed to this then specific Mrs. Edwards or on statutes to based had be stay pending appeal to court for a Here, special the very circumstances.5 (1907), 1. 45 to 902 Notices § guide D.C.Code the ex- to “a reliable constituted quit to month: —Month on determination of the Court’s ercise month, tenancy from month “A to Consequently sim- he did not a default.” quarter quarter, may or to showing judgment reopen ply a the by days’ thirty notice in terminated writing neglect, to con- went on of excusable to ten- from the landlord up defendant set whether the sider quit, ant to or notice from such a sufficient, proved, bar the if “defense claim.” in- the tenant landlord expire, quit, tention said notice to Co., D.C. Ins. Life Fowel Continental case, day month either Mun.App., Warfhen A.2d tenancy from which such commenced D.C.Mun.App., Lamas, 48 A.2d 759 run.” (1945). held that Fowel the court (1967), Ejectment 2. 45 D.C.Code § reasons evidence as to the landlord’s summary proceedings: possession seeking inadmissible. “Whenever a lease for definite acknowledged distinct three DCCA expire, any tenancy shall term shall landlord’s cases “wherein lines of aforesaid, by notice as be terminated tenancy been has to terminate fail or and surrender premises, tenant shall refuse First, A.2d at 890. limited.” possession leased body governmental land where may bring the landlord an posses- requirements subject lord, éjeetment action of to recover arbitrarily process and act cannot due sion in the United States District Rudder v. tenants. towards its Columbia; for the District of U.S.App.D.C. 329, may bring the landlord Authority Housing possession to recover Dis- before the Cordova, Angeles City of Cal.App.2d Los trict Columbia Court of General Supp. 883, 885, P.2d Sessions, provided in 11- sections cert, denied, 701 to 11-749.” (1956). 100 L.Ed. See also 16 D.C.Code Authority, Housing Thorpe v. See also 55(e) L.Ed.2d 3. Rule Court of General 386 394 Second, provides there is where Sessions cate a that a to va motion legislation judgment emergency stricting re control ac rent shall be default rights “setting of land companied by contractual a verified answer Hirsh, up proved to bar lords. Block defense sufficient Though And part.” the claim or in whole third, apply retaliation where eviction the rule does registering to vote or actions, for the tenant’s that tenant Greene felt concluded, ing reported court the tenant’s his tenant because hous- report petition premises. of law and to code violations on the violations We grievances pro- however, redress of was not do reach the legislation specific tected any that whether it is unconstitutional change rights apply relative of ten- court to the statute in such cir- ants and landlords should undertaken because we think cumstances legislature, applied. not the courts. We never intended that it be so granted appellant appeal Nevertheless, leave because constitutional decision to court. We hold that statutory considerations inform the promulgation rests, code struction on which our decision briefly.6 the District Columbia Commission- dowe discuss them Congress impliedly ers at the direction of argues Appellant first to evict change just effected such a rela- reported her because she has tive of landlords and tenants and law authorities proof of a motive does abridge her First Amendment constitute a defense to an action of evic- report violations of law Accordingly, tion. the de- we reverse petition for redress cision of the DCCA with directions that grievances. But while it is clear be- it remand to the Court General Ses- yond peradventure making of sions for a new trial Mrs. Ed- complaints protect- such is at the core of permitted prove try wards will be to to speech,7 ed First Amendment that jury to a that her landlord who seeks punishment, eviction, in the form of to her evict harbors a intent. imposed by the state unconstitu- tionally abridge rights, First Amendment

I equally it is clear that these are Appellant has launched a con rights against government, challenge judicial stitutional to im the parties. Consequently, plementation before of 45 D.C. Code 902 §§ prevail theory can on 910 aid of landlord who is evict- she must show actiaally ond, voting. discerning Bruce, United v. the States intent of Cir., (1965); sought we must assume that too United to Beaty, Cir., protect avoid States v. constitutional F.2d 653 doubt and to distinguished the The DCCA constitutional interests which the are at voting involving “specific Dulles, stake. cases See Kent 357 U.S. * * * legislation” protect 78 S.Ct. enacted to L.Ed.2d 1204 the intimidated Yates v. eviction. The 298, 319, acknowledged, 1064, 1077, court also 77 S.Ct. without evalua- 1 L.Ed.2d comment, tive that : some courts have “We need how- ever, decide allowed a tenant show as a issue before defense us terms sought solely compulsion, that of his constitutional eviction was for be- our first duty cause of his is to race. Abstract Investment construe this statute. In do- Hutchinson, Cal.App.2d 242, Co. v. so we should not assume that Con- Cal.Rptr. gress (1962). Racially disregard re- chose to a constitutional * * danger strictive covenants are zone unenforceable part the District because their en- gives express 7. The First Amendment rec- might contrary pub- forcement to “the ognition people “to policy lic Hodge, of the United States.” Hurd v. petition the Government for redress 24, 34, grievances.” U.S.Const., Amend. I. 92 L.Ed. Meiiclejohn, See A. Political Free- lurking republieation 6. expanded constitutional issues are dom Speech relevant to our construction form his stat- work Free and its ways. First, utes in two where two Relation to Self-Government interpretations plausible, Meiklejohn, we should The First Amendment is an opt Sup.Ct.Rev. Absolute, 245; one avoids the constitu- Kal- questions. ven, tional Davis, District of Columbia New York Times Case: A U.S.App.D.C. 311, Meaning Note on “The Central cert, denied, Sup.Ct.Rev. Amendment”, First 18 L.Ed.2d 598 And see- (1948). But 92 L.Ed. 1161 relevant is in some judicial inhibiting in and extent of the nature responsible for sense bring required play grievances; into volvement petition redress words, req- is un these constitutional constraints show, in other she must course, is, Appellant clear. The central case seeks “state action.” uisite arguing Shelley Kraemer, where the Court this obstacle to overcome pri judicial her evic- ruled that enforcement courts effect that the use agreements containing sufficiently vate restrictive implicates state as tion Negroes against selling vio bring play covenants constitutional into unreported com lated the Amendment’s on an Fourteenth relies straints. She * District mand that shall “[n]o State the United States decision of deny any person jurisdic of New within its District Court for the Southern just protection equal tion the of the laws.” York, invoked the court where Shelley theory support a But the remain unde the issuance contours restraining just injunction an al- fined and it is how far preliminary uncertain reasoning leged retaliatory Tarver extends.9 Greene rent increase. S.D.N.Y., Shelley opinion Corp., declined rest C. Construction v. &G. if, pur constitutional fear November poses, every private right trans were no doubt that can There now be governmental formed into judiciary application it, fact of court mere enforcement law, a lawsuit common state’s gov the distinction between private parties, constitute between ernmental action would be obliterated. must conform action which accepted reasoning He Mr. Jus which constrain strictures constitutional Black, Shelley joined in tice who Co. government. Times New York opinion since maintained Sullivan, applies where, its doctrine (1964). This 11 L.Ed.2d 686 Shelley itself, upon to court is called simply en so even the court upset willing a transaction negotiated between forcing contract. privately willing, Others, Kraemer, 1, buyer Shelley S.Ct. and a 334 U.S. 68 seller.10 v. generally See, Henklin, Shelley concept g., action” e. v. of “state Kraemer: play Opinion, 110 U.Pa. 46, er v. Hoxie School District No. Demise the “State Action” Limit on Cir., Equal And the state 1Guarantee, Protection responsible (1966); Henkin, for the of its officials acts Colum.L.Rev. su pra 9, even where the acts unauthorized or Note at 481-485. The literature by forbidden generally law. United States v. on “state action” is voluminous. Raines, 17, 25, 519, 362 U.S. 80 S.Ct. See sources cited in footnotes 6 and 34 (1960) (raising Alstyne, L.Ed.2d 524 Black, Fifteenth of Van Mr. Justice Con question).; Amendment Review, state action stitutional and the Talisman 91, Action, Screws v. 108, 219, 325 U.S. State 1965 Duke L.Rev. 1031, 65 S.Ct. recently, Black, 89 L.Ed. 1495 222 and 231. And more responsible 8; Karst, It also be Note Horowitz permits private per Mulkey: where it Telophase bodies to Reitman v. A essentially governmental Equal form an func Protection, Substantive Sup.Ct.Rev. tion, Newton, Evans 382 U.S. 39. 86 S.Ct. 15 L.Ed.2d 373 Terry Adams, 461, 469, court, 13. instance, U.S. state could (1953) (Fif constitutionally probate leaving 97 L.Ed. 1152 a will Amendment); Allwright, teenth property Smith deceased’s to the Catholic 649, 662-663, Church, though 64 S.Ct. even the state could not (Fifteenth constitutionally comparable L.Ed. 987 Amend make dis- ment), position prop- it where owns leases of its own funds. cept in those situations the Con- what where is state action under the Fourteenth inaction; always stitution itself demands Amendment is not state action is, begin state with, those situations where under the First. To legislate equality could not because to do Reconstruction amendments were enacted impinge particular purpose so would on individual dis- with a mind: countervailing rights vestiges slavery criminator’s of lib- eradicate forever the erty, state, property addition, and the language black codes.18 In privacy.14 through courts, police aid its could Amendment, the First “Con- gress quest keep an groes individual his Ne- shall make no law party from a dinner home not as amenable as the Fourteenth though Negroes keep even it could not Amendment tois the construction that from a courthouse cafeteria15 or even there is state action inaction or privately solely from a judicial owned hotel gives legal merely action which Consequently account of their race. this privately effect to In- decisions. made theory might dull, but it would not ob- expounded deed those who have literate, private the distinction between theory of state action have been careful and state action. to limit their case area of racial analysis Were this of state action discrimination.19 equal protection inaction under the clause But this does not end the matter. unqualifiedly applied supra, Sullivan, New York Times Co. v. governmental was action under the First of Alabama nor neither forced Amendment, there is no doubt that Mrs. encouraged even Police Commissioner Edwards’ eviction could not be sustained. Sullivan to sue the New York Times. Not would the simply provided It courts in which such protect failed to re- brought, a suit could be common and its prisals for the her First exercise of provided law doctrine (and clearly Amendment constitutionally it could dispute

protect There her if chose be settled. suggestion through would, to do no Court’s so),16 court, aiding fairly actually opinion individual the doctrine was not honestly applied who seeks to intimidate the state court. the exercise may be, however, Court, hardly pausing those Yet rights.17 Black, supra 100-103; judicial “state action” Note turns on whether Henkin, supra deprivation Note essential 487-496. alleged right. See, Note, g., e. Derrington Plummer, supra Retaliatory Landlord Tenant — heyday, 16. Even Evictions, in its the state action 3 HARV.Crv.lt.-Civ.Lib.L. preclude legisla- doctrine did not federal Rev. Poliak’s view 197-198 protecting tion similar, supra. interference is somewhat see Note report the exercise of vio- Slaughter-House Cases, 18. The lations law. Quarles In re and But- (16 Wall.) 36, 71-72, 21 L.Ed. 394 ler, (1872); Loving v. Commonwealth of Vir (1895). Unquestionably ginia, legislation governing merely the District L.Ed.2d 1010 J., see also ten of Columbia would be valid. Antislavery Origins Broek, The oe the Fourteenth Amendment 17. Given the current state of the law in Munro, Original Frank and The Under District, questionable the it is that a standing “Equal Protection the resisting landlord could ever evict a ten- Laxos”, 50 Colum.L.Rev. ant without the aid of the courts. See Bickel, Original Understanding Parkwood, Inc., D.C.App., Fisher v. Segregation Decision, the 69 Harv.L. 757, (1965). A.2d And in view of Rev. judicial stay, our action to effect an evic- indispensable. Black, supra tion in 8, 70; Henkin, this case would be Note at question supra To some 9, commentators the Note at 473 n. 2. action,20 state question of the Fourteenth the in- consider Amendment it as against corporates First, judgment the here the held that libel the while chal- case, lenge Times, uncon- of that is under on the facts made the First Amend- abridged First ment stitutionally the Times’ itself. But there no reason is incorporated in the to think that under First Amendment as review the process any due Amendment Amendment’s is more In Fourteenth limited.22 case, and the that review under fact Fifth Amend- clause. The legislature process no was ment’s “made law” due not clause would be. state Bolling Sharpe, apparently this determina- irrelevant to 74 S.Ct. n may 98 L.Ed. tion.21 And concept be that the more of due flexible then, judgment, court A state process preferable question is lawsuits, adjudicating private involving is one First Amendment abridge unconstitutionally though government, perhaps and the to speech of free as well sufficiently implicated abridge- in the course, Of equal protection laws. bring play ment into constitutional was in Times federal court review constraints, directly responsible process technically clause is not under the due Sullivan, dispose two See New York Times the outset of Co. at 20. “We judg- grounds 376 U.S. is no more reason sional action There to insulate the asserted require congres consti- propo- from the Alabama courts ment of challenge scrutiny. first is the where the is made tutional under the First Amendment itself. As the State sition relied on put Mr. Black it: Amendment Justice “The First ‘The Fourteenth Court—that Amendments, think, not action and Fourteenth I State directed is proposition away government, no has take That state and action.’ Although federal, power application is this case. all restrict freedom private parties, speech, press, assembly between a civil lawsuit applied Louisiana, a state courts have Cox State the Alabama petitioners claim of law which rule L.Ed.2d opin impose (concurring dissenting their con- restrictions on invalid speech press. ion). (Emphasis added.) Compare stitutional freedoms Hurd Hodge, supra been that that law has It matters Note 334 U.S. at applied it is action and a civil at “It is 853: not consistent though supplemented only, public policy common law with the of the United Code, See, g., permit Alabama e. statute. States to federal courts capital general eq test 908-917. The Tit. form Nation’s uitable §§ exercise ap- power powers compel been has in which state action denied form, plied but, whether whatever the state courts where such power guar been exercised. fact has been held be violative of ” * * * anty equal protection at of the laws.” Congress, Of course there are acts of 902 and §§ D.C.Code D.C.Code enough rule common law It was play instant case. But conflicting applied claims to mediate was say statutes, applied these Though parties. of highly between here, might be unconstitutional would decision relevant Court’s way put be ting accurate but artificial plain- merits, fact that on the tiff general, issue. the statutes factor was not a a state official simply provide judi the landlord with a there determination in the Court’s achieving cial mechanism for what he For an action. ex- reviewable state traditionally accomplish by could self- im- of the state action cellent discussion help. say They nothing about what Times, plications YorJc see Van of Neio any defenses are available to ten Alstyne, at 227-230. Consequently ant. a more informative way framing First would be: true that 22. of course explicitly proscribes Is it unconstitutional for court not Amendment permit congressional a defense them that least as action. But at sought Fourteenth, incorporated it in- eviction retalitation for the into the rights? In exercise of First Amendment deed, rights action” which “state validates citizenship? protects. abridges Action federal the freedoms required. infra, II. legislature text Part not is a state

6«5 ous restrictions on federal constitutional to borrow instructive be for it. theorists state action.”24 again action other state from pri- though analyses, concerned whose question The in the instant case would discrimination, are marily racial with consistently then be whether a court can rigid and therefore less somewhat prefer with the Constitution the interests comfortably area transfer more evicting of an absentee landlord25 in a Four- under of racial discrimination solely reported tenant because she has the context into Amendment teenth to violations code those rights. First Amendment improving of a in tenant her petition is resort to her suggested that there It has been report and to action, individual not when state state, designed against protection. laws On asserts a claim theory, this if it be unreasonable would he a claim also when asserts prefer interest, it against other would landlord’s claims Justice con- also Mr. persons resolves the unconstitutional.26 state Black, weigh prone according policy is inter- of what who is not flict to. circumstances, ests i. where First Amendment reasonable involved,27 jiist e., according this seems to have taken this Once its law.23 ques- approach writing in in established, Court “state is action” Alabama, simply the Marsh “whether v. State of tion then becomes 501, 276, particular particular in S.Ct. state legal which, case, determining circumstances, rela- like the instant involved abridge- privately-initiated, persons, state-aided tions between ment of First Amendment freedoms.28 the vari- stitutional when tested interpretation it, Alstyne, supra 12, 241- en.ce 23. Van Note at DCCA’s Supreme 245; Horowitz, defer to Amendment while the Court would Fourteenth comparable Aspects Discrimination construction state Racial Housing, a state “Private” court of statute. .Calie.L.Rev. Williams, Tioilight (1964); State The opinions dissenting See, g., 27. e. (1963); Action, 41 L.Rev. Texas Bar, Konigsberg State Alstyne Karst, Action, 14 Van State (1961); 81 S.Ct. 6 L.Ed.2d Horowitz, (1961)-; Stan .L.Rev. 3 The States, 365 U.S. Braden v. United Misleading Search “State Action” 81 S.Ct. 5 L.Ed.2d Amendment, Under Fourteenth States, 360 U.S. Barenblatt So.Cal.L.Rev. 109, 134, 3 L.Ed.2d 79 S.Ct. Horowitz, MAsleading 24. The Search Dennis v. United 95 L.Ed. U.S. “State Action” Under the Fourteenth Black, supra Amendment, Bill also The Note at 209. Rights, 35 N.Y.U.L.Rev. 865 25. Tlie fact Mrs. Edwards apparently in Mr. home Mr. Justice Black will also sense boarder Habib’s would, balancing approach theory, he on this resort be relevant perceives “speech plus” assessing associating Cox his interest he did pleases. Compare Louisiana, supra Appendix I Note whom he State of opin- Douglas’ concurring “[T]his at Mr. Justice does, should, Maryland, agree ion in Court Bell v. and I State of 261-271, ‘weigh in order circumstances’ protect, destroy, freedom of religion.” press, speech, there If (see thing “speech pure” unambiguous If ever such made an Kalven, Concept judgment Public For- in- the context of the Sup.Ct. Louisiana, stant um: case the landlord’s were Cox interests 1, 23-25), preferred tenant’s, to be Rev. we have in the instant this court great speech judgment would For Mrs. Edwards’ itself owe defer- ease. ence, any way more than does not interfere with the legitimate property comparable judgments would interests of her land- owe legislatures. If, anyone however, lord or else. the stat- theory simply undear, ute it is we would owe no defer- whether prosecution before the Court Marsh there could been no State, consistently private complaint. was “whether a with without a In both Amendments, simply provided Fourteenth First and cases the state courts impose punishment essentially private can person criminal and laws to settle disputes.30 re- imping- who undertakes to distribute Where settlement ligious premises freedoms, literature on the of a ed on First Amendment a bal- company-owned contrary ancing town process was utilized on review management.” wishes town’s determine did so unconstitu- whether tionally.31 U.S. at at answer- But we need not undertake ing it, compelled Mr. weighing Justice Black felt such a here or interests even rights to “balance the Constitutional process appropriate, decide if such a against property find, III, owners of those of the for we as indicated in Part people enjoy press freedom of Congress, by directing enact- religion” doing remained mind- code, impliedly ment of the di- occupy ful “of the fact that prefer latter rected the court to the interests preferred position.” at tenant who seeks avail himself He concluded that protection. of the code’s unconstitutionally prefer- acted ring rights property II of the town’s owners to those of the defendant and argues Shelley Appellant that, through ap- the town’s residents29 concept and the interpreted narrowly, of “state action” are plication trespass of its criminal statute judicial and if the to Mrs. Marsh. “Insofar as the State implementation of the ef- D.C. Code to attempted impose pun- criminal fect a eviction does not vio- undertaking ishment on rights, late her First Amendment religious distribute in a com- literature eviction none- would be unconstitutional pany town, its action cannot stand.” petition theless because Ibid. government report and to Again constitutionally protected it should law is be remembered private governmental Times state did not as well inter- initiate action, encourage strong support nor did it ference. There parties position. involved to do so. And in In Crandall Marsh v. State injunctive disposal. unreasonable for the mechanism at his property rights by forbidding permit picketing limit If re- he wished to he taliatory protect Consequently any evictions in order was. free to do so. alleged report housing impair the tenant’s decision to First and code Fourteenth violations. Amendment pickets solely of a company 29. Just as the interests of the party, Btoing not that of the state. town’s residents were considered Shelley cited and relied v. Krae- Marsh, Court so here the interests mer, 68 S.Ct. of other tenants who would deterred L.Ed. 1161 The case is discussed seeking improve their Alstyne, supna in Van at 226- by reporting code violations to the au- Mr. 227. See also Justice Harlan’s con- thorities would have to be considered curring opinion dissenting in Peter- deciding whether Mrs. Edwards’ eviction City Greenville, son would be reasonable. 10 L.Ed.2d 323 30. See also American Federation Labor Swing, where the 31. The First balance where and Four- struck down an Illinois statute teenth Amendment are involved gave employers to secure be different. The individual’s inter- injunction against picketing an shops being of their est free to choose his associates existing when they say may there was no dis- on the basis of what do or pute employer between the weight and his em- be entitled to more than such ployees. required Nothing in the statute employer choices made on the of what basis encouraged are, e., to utilize i. on the basis race. * * * 35, (6 Wall.) in the exercise Nevada, 18 L.Ed. free [another] U.S. 73 * * * right himto the Four- of secured (1868), [a] decided before 744 enacted, the the United the or of Constitution laws Amendment was teenth States, having ex- or because of down Nevada’s one-dollar his Court struck 33 part leaving and anyone ercised the same.” defendant the state tax on accomplices tax had and beat- a his threatened the Court that such because felt right Worley informing to might infringe for of- en one federal the individual’s in, violating Washington participate ficers that to the defendant was travel government. liquor from, The defendant the the federal law. redress and seek right Cruikshank, argued Worley 92 to in- no And United States v. (1876), against private 542, protectable (2 Otto) L.Ed. form that was 23 588 U.S. Quarles rejected this in In re But the Court in dictum32 and interference. 532, 959, argument, stating L. Butler, 39 To S.Ct. that: 158 U.S. holding, the Court 1080 as Ed. informing right “The of citizen a recognizing explicit more

was even right law, the of a of like violation petition government right the the charge prisoner custody aof a right grievances and the of redress violation, protected of such to be government of of inform the violence, does not de- lawless citizenship aris- of federal law as pend upon Amendments of the system as frpm.'.rQÜr.’_£pnstitutional Constitution, out the but arises of "whole, just First a from the Amend- not the creation and establishment any. particular other or- from ment gov- Constitution a national itself of provision. or ernment, paramount supreme stitutional clause * * * Quarles Supreme sphere affirmed within its of action. Court * “* * Rights yjg Qourt Act under Civil conviction said in [As 651, conspiring to parte Yarbrough, of citizen for Ex 4 28 L.Ed. threaten, 274 “injure, oppress, or intimidate and, of, such, protection as under prosecution un- involved a Cruilcshanlc guaranteed by, May the United States.” the Enforcement Act of § der from, simply amended, Because the arose not (now, 16 Stat. Bights very! (1964 the Bill of from “the ed.)), which made 18 U.S.C. it a government, republican form,”! idea of felony persons or for two more * protected * * they against private/ could be conspire together “band or * * * as well as official injure, oppress, interference. with intent threaten, (2 Otto) at 552-553. See also United any citizen, intimidate or Classic, States v. prevent or intent hinder free ex- his Logan (1941); S. enjoyment Ct. L.Ed. 1368 any right or ercise and privilege granted States, v. 617, United U.S. to him secured (1892); States United of the United the constitution laws Waddell, States, having U.S. because of exer- (1884); Yarbrough, parte L.Ed. Ex cised the same On motion judgment 28 L.Ed. arrest after a verdict analysis thoughtful For guilty, found all Court congressional power of the 5§ counts indictment be- defective Amendment, Fourteenth Fore- allege see Cox cause did Adjudication word: Constitutional conspiracy be- state and thus the was Rights, But, the Promotion yond Human the reach of law. federal alleged On devel- said, Harv.L.Bev. it had been “If opment power generally, object B. of federal see that the de- these counts prevent meeting Carr, fendants Federal Protection of Civil Bights Cummings purpose consulting & C. Mc- [that H. public petition respect Farland, and to Federal affairs Justice government griev- Dorsen, Emerson, T. the ances], redress D. & N. Haber Bights have been within case would Political in the Civil XV, statute, scope D Ch. Sec. within sovereignty For United States.” purposes to assemble for these Section Bevised Statutes 1874— citizenship, now, amended, “is attribute national 18 U.S.C. § (1884)] power protect law, first, : ‘The cer- questions, tions of [to tain interference] whether such interferences them- were arises out of the circumstance selves unconstitutional in the absence party the function in is en- legislation, second, remedial un- gaged, constitutional, legal or the which he about consequences what exercise, dependent on the laws rejected attached to them. DCCA * * * argument just say- of the United States. the ing reason, [I]t duty Quarles is the to see case where “Con- right may freely, gress that he special legislation exercise this enacted to secure protect rights.” and to him from violence while certain sumably Pre- 227 A.2d 391. doing. doing, legislation or on account of so to is referred duty solely Rights from This Act, ap- does not arise the Civil and the DCCA concerned, party parently rights interest felt that current civil govern- necessity but from the apply statutes would not to this case. ** ment *. itself But the enforcement section of the Civil purpose constituted a valid defense. well as cordingly is Greene found that 537, 15 S.Ct. at 961. States by the Constitution of the United This that this ^[******] “The the basis of this governmental right, necessary protected * * * right is proof ” secured conclusion is against interference.34 theory of a argues, to the citizen at 536- is ac- ** It wards is landlord’s action of eviction. stitution or laws of the United federal this constitutional created a constitutional ference, right It did not create new Rights deprivation legislation against private Act not that setting up Court report provided rights held Civil right it was itself a right as a secured Rights remedies rights. Quarles protectable that Mrs. Ed- defense of law by Act. It is not And the the Con- that for the inter- right It by is necessarily relevant, therefore, though argument be- from But peculiar requirements cause of the Quarles persuasive, it not conclu- rights may the civil sive, Quarles statutes for at issue in was the provide her with affirmative applicability constitutionality additional civil35 or Rights criminal remedies36 for viola- punish private Civil inter- Act right.37 tion of the same right report ferences with the viola- protect which it could be inferred that the land 34. Federal law can such reprisal ban (at right vote) private- lords’ of Brown least from participation registration ly in the voter exercised intimidation as economic drive. See also United Katz States well as from more violent forms of coer- Original Knights enbach v. of the Ku cion. The current civil statutes Klan, E.D.La, F.Supp. just Beaty, Klux that. do supra States v. (1965), and cases discussed therein. Note 5. Even “conduct legal, might perfectly not colored (1964 ed.) 35. 42 U.S.C. § establishes interfering the bad intent with the right deprivation of action for the right [register and] vote” be- any “rights, privileges, or immunities “illegal upon proof illegal come such secured the Constitution and laws” Bruce, supra intent.” United States only against persons acting under color 353 F.2d at only of law. And under color of the intimidation a con- took form of territory. Gregoire law of a state or spiracy by landlords to the state invoke Biddle, Cir., trespass Brown, keep cert, laws to one denied, Negro collector, from insurance reach- 94 L.Ed. 1363 ing many policyholders who were of his 1985(3) (1964 ed.), § U.S.C. which es tenants on their land. Brown had been tablishes a of action inter- urging neighbors active in his friends and page 36. See note allega- 36 on to vote and the felt court complaint, tions been showing page below, See note 37 on dismissed .made ceased, possession Dis- III trict of Columbia General But need not decide whether we * Sessions a sum- issue judicial recognition of this constitutional party complained mons to of to compelled. constitutionally defense appear why judgment and show cause words, decide in other We need given against should not him for whether val 45 D.C. Code 910 could § possession.” restitution of idly plain compel court to assist the penalizing for ex tiff in defendant provisions simply procedural. These ercising to in her constitutional They say imply anything neither nor govenment form of violations about whether of retaliation or evidence law; -for are confident that we improper other motive una- should be did not intend entail a result. it to possessory vailable as a defense to a ac- pertinent part, 45 D.C. Code brought tion them. is true provides: making that in his affirmative ease for * * * tenancy possession “Whenever the landlord need show by afore- shall be terminated notice as given that his tenant has been 30- said D.C. Code see Note [45 day statutory notice, and he need not § supra], tenant fail and the shall assign any evicting reason for a tenant possession or of refuse to surrender occupy premises who does not under * premises, the leased a may lease. But while landlord bring re- action legal any evict for reason or for no rea- possession of cover the District before all, not, hold, son at he is we free to Sessions, Columbia Court of General evict retaliation for his re- tenant’s provided as to 11- in sections 11-701 port housing of code 749.” statutory authorities.38 aAs matter of pertinent And 16 D.C. Code § public construction and for reasons of part, provides: policy,39 per- such an eviction cannot be person possession “When a detains * * * mitted. property of after his real L’Orange Co., 38. In by Medical Protective private ference or intimidation viduals, requires indi- Cir., (1968), conspiracy by the Sixth two or malpractice Circuit held that a insurer persons. more policy could not cancel the of an Ohio provides which § U.S.C. criminal simply dentist because the insured testi- penalties for interference with or malpractice fied suit a col- privileges by secured the Constitution league company. insured the same requires or laws of the conspiracy, United States Presumably policy could have been (1964 while 18 U.S.C. § cancelled for lawful reason or for ed.) penalizes only acting those all, no reason at not be can- could (Section color of law. 242 is how purpose intimidating celled for the ever, acting those limited to under the pub- witness contravention Ohio’s territory.) law of a policy. lic See also Petermann v. In- Teamsters, Shelley, are, conceivably, ternational Brotherhood 37. As with there problems etc., Cal.App.2d 184, containing Local Quarles doc- Could, instance, P.2d trine. that a union a landlord held employees except could not fire its even invite all his tenants to dinner one of though complained there no fixed those who was term em- ployment Again if the code violations? reason the dismissal landlord’s employee give countervailing of the his refusal constitutional privacy testimony legislative false in- and association cut- before be the dismissal, edge. vestigating ting perhaps petty slights committee. Such a Or such held, intimidation, it policy against perjury. do rise to the level of contravened California’s punishment. coercion, interference pointed out, Finally, as Greene simply setting up Compare Hodge, supra Hurd v. defense, 34-35, stitutional aas and is not at 852- seeking affirmative relief based it. “But on 853: the absence of the codes,40 reporting sanitary in the initiative violations. es Though Congress’ procedure explicit official light there is no pecially in filing complaints, enactment, such indicate direction their congressional Department bureaucratic structure of strong pervasive Inspections city’s establishes Licenses and slum concern to secure for year procedure,43 such a and for fiscal decent, least safe dwellers or at nearly of the handled cases sanitary, a third places im Effective to live.41 Department private arose from plementation of the and enforcement complaints.42 permit To obviously depend part codes which contribute to cause the de- statute, there are other considerations buildings terioration residential which would indicate enforcement health, areas, to the deleterious of restrictive judicial covenants these cases is safety, and morals com- welfare of the contrary jmblic to the munity and inhabitants.” policy as such should corrected this Court in the “The Commissioners the District of powers supervisory exercise of its over Columbia, are authorized and directed the courts of the District of building Columbia. reg- to make and enforce power of the federal courts to en- ulations said District as for the agreements force the terms of may deem advisable. subject at all times re- exercised regulations made “Such rules and public strictions and provided limitations above shall have the same policy of the as manifested United States force effect within the District Constitution, treaties, in the utes, federal stat- enacted Columbia Con- precedents.” applicable legal gress.” § D.C.Code (Footnotes omitted.) also D.C.Code (1967). D.C.Code § 701 pro- 40. The District have Commissioners were These functions transferred with- mulgated housing regulations extensive change out District of Columbia require keep which premises their landlords pursuant Reorganization Plan Council sanitary “clean, and safe Fed.Reg. 3 of No. op Housing Regulations condition.” Cong. & Admin. News U.S. Code op Columbia, the District §§ 1967, p. 3537. See also 1 D.C.Code (1956). purpose Regu- of 224a, (1967); §§ D.C.Code lations is set forth in 2101: § (1967); § 47 D.C.Code “The of Commissioners the District Manage- Whetzel v. Jess Fisher hereby of Columbia find and declare U.S.App.D.C. Co., ment buildings there exist residential (1960). Congress’ F.2d 943 concern and areas within said District which housing housing with conditions and code blighted, are slums or are otherwise generally enforcement evidenced in are, addition, and that there other ed.), (1964 1451(c), U.S.C. §§ buildings areas within and said (Supp. 1965-66). II See also Schoshin- deteriorating District which and are ski, Indigent Remedies Tenant: of danger becoming are in of slums Proposal Change, 54 Geo.L.J. blighted otherwise unless action is tak- (1966). 525-526 prevent en to their further deteriora- Reorganization III, Order No. Part tion and decline. C., 6., D.C.Code, Appendix, at 137 “The Commissioners further find (1987). declare that such unfortunate condi- due, among 47,701 handled, tions other 15,000 circum- 43. Of cases almost stances, affecting by private complaint. to certain conditions were initiated See Hearings buildings such residential and such Before the Subcommittee areas, among being following: them on Business and Commerce of dilapidation, inadequate maintenance, Senate Committee on the District of overcrowding, inadequate toilet facili- Columbia on S. S. 3549 and S. ties, inadequate bathing washing 355S, Cong., Sess., fa- (1966). 89th 2d at 52 cilities, inadequate heating, insufficient And the need for increased protection against hazards, group participation fire inade- in code enforcement quate lighting ventilation, widely recognized. and other has been Gribetz and' insanitary Grad, Housing unsafe conditions. Code Enforcement: “The Remedies, Commissioners further find and Sanctions 66 Colum.D. conditions, declare that Note, the aforesaid Rev. Enforcement they exist, . Municipal Housing and other Codes, conditions 78 Harv. of evictions, clearly then, frustrate eviction cannot be toler- would housing code ated. There can no the effectiveness of doubt be though dweller, upgrading quality slum his home be a means of as Washington.44 by housing violations, housing in marred code will of pause long complains he them before eyes judges, cannot our As “we shut consequence. if he fears eviction as notoriety gener- public to matters of Hence eviction under the circum- cognizance. al our seats When we take only punish stances of this ease on the are not struck bench we making complaint which blindness, and forbidden to know make, she had a constitutional judges Ho Ah what see as men.” we impute a result which we would Nunan, C.C.D.Cal., 12 Fed.Cas. Kow Congress simply the will on the try- (No. 6546) In essentially procedural basis of an en- ing Congress to effect will of actment, but also a warn- would stand as respon- equity as a court we to others that dare not be sibility context to consider the social bold, which, result authori- operational which our decisions will have housing code, zation of we think light appalling con- effect. sought affirmatively to avoid. shortage housing in dition and Wash- ington,45 moving, expense The notion that the effectiveness legislation inequality bargaining power between remedial inhibited will be landlord,46 reporting if those of it can tenant and and the social legally assuring importance economic intimidated is so fundamental presumption against legality that a minimum least standards ditions,47 of such not hesitate declare intimidation can inferred as we do immorality. They ease and crime and See also 843-860 L.Rev. spirit by reducing Hiestand, also suffocate the Slumlordism Sax and people - Tort, who live there to the status 65 Mich.L.Rev. They may living of cattle. indeed make Hearings, 90- They an almost burden. insufferable 114, 142-155, 192-196. sore, ugly blight also be an on the community charm, Report Capital the National which robs it place Planning Commission, makes it a Problems from which turn. men C., People Washington, misery may despoil Housing JO. 43, community open Hearings, supra reprinted an in as sewer ruin Note Parker, a river.” Berman at v. 98, 348 410: U.S. “ * * * 26, 32-33, respond- 102, 75 S.Ct. Poor families are 99 L.Ed. 27 (1954). Washington’s housing shortage See also Frank v. State of Maryland, 371, overcrowding; by 360, by doubling 359 U.S. 79 S.Ct. 804, 811, (1959): structurally living 3 in L.Ed.2d 877 “The substandard or basic, housing; by sharing need to maintain minimal other stand hazardous housing, prevent doing water, heat, spread light, ards of or hot without facilities; pervasive of disease and of that break or kitchen bathroom people farming down in the fiber out their which is children wherever produced by they can; by denying slums the absence of their children officials; living, public the barest essentials of civilized exist landlords major high paying has mounted to a concern of rents com- which are government.” pared American to incomes so living must sacrifice According Report necessities; living the Plan- other ning Commission, supra 45, pp. dignity privacy. Note at without one Each 5-6, 100,000 “more than children are of these features has been measured up growing Washington separately in now under or has been observed housing Washington’s poverty one or more conditions which areas.” psychological, social, Schoshinski, supra 41, create and medical See also Note impairments, satisfactory home and make 519 ff. practical impossibility.” life difficult or a Kay Cain, U.S.App.D.C. 24, 46. See 81 Reprinted Hearings, 43, 305, (1946). 154 F.2d 306 at 410. disreputable housing 47. “Miserable spread conditions do more than dis- legislation it is even if cable where the court’s is invoked inherent aid expressed in the statute itself.48 to effect in retaliation an eviction reporting recently drawn code violations.51 Such an inference was from the federal course, say that This is down labor statutes to strike prove can tenant deny- supremacy a Florida statute clause purpose pos she remain entitled to is ing unemployment insurance workers illegal pur perpetuity. session If this discharged filing com- in retaliation pose can, dissipated, is the landlord plaints federally labor unfair defined binding legislation52 the absence of or a practices.49 are not confronted While we contract, evict or raise their his tenants between federal possible conflict with a legitimate rents or other economic law, policy we do have and state reasons, or even for no reason all.53 harmonizing reconciling two task of imper permissible to best effectuate federal so as statutes purpose missible one of fact for the proper bal- purposes of each.50 jury, court or deter while by interpreting can be struck signifi ance easy, mination is not inappli- cantly problems 45 D.C. 902 and different §§ Code g., See, given leaving Life Hancock Mutual e. John full an area effect while U.S.App.D.C. B., operation v. N. L. R. Ins. Co. of effective the earlier 261, 264, : ‘Un- statute. International of Electri- Union petitioner’s view, cal, Radio, etc., B., der Management the Act [Labor L. R. v. N. Workers Act, U.S.App.D.C. 91, 95, now U.S.C. Relations ed.)] permit seq. (1964 (1960). task, think, 151 et §§ This we our applicant employment accomplishes. to an denial of resolution of issue * ground that he on the important 51. In a recent decision the testimony given charges or before filed DCCA has held matter of * * * would] [This the Board. public policy a who has rented administration of the Act thwart space knowing that it contained present by ignoring threat itself the ever housing code violations could not collect reading Such of such intimidation. back rent from his Brown v. ex-tenant. perversion legisla- be a the Act would Realty Co., D.C.App., Southall 237 A.2d intent.” tive Commission, Industrial Nash v. Florida 52. There intro- have been several bills L.Ed.2d 88 S.Ct. expressly duced deal Sears, also Roebuck problem retaliatory with the evictions. Co., 225, 231, & Co. v. Stiffel Hearings Senate, were held see (1964), L.Ed.2d supra, Note 43 three on bills none Compeo case, Corp. companion and its reported out of committee. H.R. Day-Brite Lighting, 237- Cong., 90th 1st Sess. 11 L.Ed.2d 669 now before the House Committee companion District bill, of Columbia. Its Co., g., See, e. States v. Borden United Cong., S. 1st 90th Sess. L.Ed. (1967), has been introduced in the Sen- Rawls eviction, ate. The except bill would forbid Cir., When specified reasons, during for the 45 D.C.Code enacted §§ following filing nine months the of a in and it did not have mind their complaint. proposed legislation retaliatory possible effectuating in use Note, Retaliatory discussed in Evictions Indeed, they when were evictions. enact- Housing Reporting and the Code Vio- of housing all. was no code at ed there Columbia, lations in District the of probability Congress not And in all did 36 G.W.L.Rev. 196-203 problem retaliatory of evic- attend judicial suggestion also See plementation the for im- the it directed enactment tions when Note, in Landlord housing task code. Our deter- Retaliatory supra Evictions, Tenant — Note done, Congress would mine what at 205-208. purpose light language of the ques- statute, course, prior 53. Of had it confronted the because his taint may disprove court. tion before the And where landlord not be now able possible conflict, an the more re- illicit there is a motive unless he can show a enactment, housing legitimate code, should for affirmative reason eviction. cent

7Q3 statutory a routine host eviction mechanism deal courts must which the they provided by Congress. also contexts, such as when of other employer who must decide whether an discharges a has committed worker DANAHER, Judge (dissent- Circuit practice he because labor

unfair ing): employee’s of the done so account Basically my issue between col- Judge Greene As union activities.54 leagues isme as to why said, similar no reason “There is power extent to which the of the court made judgments cannot be factual here be their exercised where eco juries in context courts and property edict the to his landlord’s [against tenants retaliation nomic being they They denied. concede as providing information for landlords] must1 government.” making “that affirmative his case and remanded. Reversed possession for need given, that his has been show tenant Judge (concur- McGOWAN, Circuit 30-day notice, statutory he ring II): except to Parts I and assign any need not evict- reason occupy r. not tenant who does bearing upon stat- The considerations premises under a lease.” impressively mar- utory construction, so Wright III in Part shalled That our law of fundamental rule of opinion, it unneces- of sary have made property give way, develops. must it now degree pursue me to colleagues My despite rule absence speculations contained the constitutional statutory prescription aof of discernible II; it is I in Parts as to standards “violations,” constitute what join I them. reason that do provision or of for com- presented statutory construction issue of pensating2 depri- the landlord for the to be seemed to me never this case has They say property. of his vation require one, nor a difficult the court will'not “frustrate the effec- spur of avoidance resolution the housing tiveness code as a means Congress which questions. stitutional A upgrading the quality promulgation housing code authorizes Washington.” recognize they Since clearly taken cannot enforcement “appalling there is condition and eviction to have excluded shortage housing Washington,”3 alleged defense here as a the kind See, g., first time Life e. Mutual here Jolm Hancock might supra property B., condemn R. Note 48. one’s and turn N. L. Ins. Co. “person”— 1971(b) (1964' over another under 42 U.S.C. § And process, ed.), but not eco without must due without the court decide whether compensation. pressures otherwise lawful nomic designed illegal to intimidate because knowledge following is common in a federal vote exercise of supra Parker, Berman note Beaty, See United States election. quad- structures in one entire Bruce, 5; supra Note United States City Washington rant of were 5. also States Note driving razed, tenants thousands County, of Education Greene v. Board “appalling” seek whatever accommoda- Cir., Miss., place could tions find. Co., L’Orange su Protective v. Medical destroyed apartment housing, beautiful pra 38; Petermann v. International buildings built, sure, have been to Teamsters, etc., Local Brotherhood “co-ops” up costing with in some to 396, 38. $100,000 per apartment, rentals in with priced generally, beyond capacity others far §§ 1. the D.C.Code pay to of (1967) thousands of those and 16 who had D.C.Code displaced. been And even the affluent having Parker, so, tenants chosen must 2. to do be Berman U.S. presumed, now, at least until to held they say message take account must President court Johnson’s Con- importance gress and economic he “social said: assuring of least minimum standards injus- “One the most abhorrent to meet such in conditions.” So by in tices some landlords committed met, not needs, now be would burden the District to evict—or threaten is congressionally prescribed pursuant to a building report to evict—tenants who adequate provision policy, for con- with Department code violations to costs, acquisition com- struction Inspections. and Licenses owners, by pensation property but to intimidation, pure “This is and be landlords who will saddled simple. dig- public It is to been a an affront with what should have nity charge. makes tenant. It often in a the man who lives leak- cold colleagues my achieve Note how report tenement those afraid to they result rule: as conditions. evict “But the landlord while legal any or for no reason reason “Certainly the tenant deserves all, hold, evict is free to he we lodges protection of the law when he report for his tenant’s retaliation housing good complaint. faith au- code legislation prevent “I recommend statutory a matter thorities. As evictions landlords public and for reasons of construction policy, (Emphasis added.) the District.” per- an eviction cannot be mitted.” He I that seems think as do con- gressional required.5 colleagues, my deplore is I Just as do be that the President doubted for a base effort of legislation up- except have recommended possession of own reason to property, secure legal on the advice of the authorities so to recover if his Certainly whom de- he he in nied, Congress our law is to be relies. accordance with process protective aware of due con- provide the basis. should siderations which must accorded Appropriate pre-condition be as standards landlord, might guilty legislation be spelled even one who out thus could be dignity” “an ten- just thereupon be affront compensation community ant. He must that a know awarded if to be due.4 found burden is not to borne land- be alone my position, I dare I am not alone lords, charged allegedly “retalia- say, Congressional Record with as I read the page complaints tory” H 1883. for March evictions because premises condition taken the “It not for Court com- them, replace pete Congress attempt cockroaches found body.” law-making all. it as the Nation’s April 1, Washington Post 1968' Judge out certain Chief Hood traced upon the for a editorialized need renewal way already references to action bulldozing project after “the wholesale type relating of situ- uprooting of fam- of slums and massive present ation said to be here. Edwards ilies with characterized them which Habib, supra A.2d at note 390- development.” Southwest majority opinion, n. 91. And see observed, writing background 6. For and as a matter Hood As Chief reference, let noted that venient District Columbia unanimous believe, “If, Appeals: Habib entered into some Edwards tenancy monthly agreement relating as March law landlords tenants brought up-to- paid outdated, one 1965. The tenant month’s should advance, and, course, legislation rent took the court date premises agree- Habib, them. The she found edict.” 227 A.2d Edwards v. provided 10, id., quoted ment failure thereafter he In note pay Hardyman, the rental in advance would consti- Collins agreement tute a default 95 L.Ed.2d vague “violations,” undefined lacking in standards. WASHINGTON, Howard Donald S. Appellant, colleagues ultimately my That sufficiency began doubt reflection enough, for position their clear seems America, UNITED STATES they Appellee. observe: No. 21105. course, say that not,

“This is prove retal- the tenant can even if Appeals United States iatory purpose re- is entitled she District of Columbia Circuit. perpetuity.” possession main Argued Jan. added.) (Emphasis May Decided say; not all as I “Of course” read, now, may I add. until the law has colleagues

My continue: dissipated, illegal purpose

“If this can,

the landlord absence

legislation binding contract, evict or a

his tenants their rents or raise legitimate reasons, economic or other reason at all.” even no according so, may

And be seen majority, mind the we need never Congress, President the aid of which the may disregard, even

would invoke. We standing. reject, long our of such law say simply jury We will leave it to a regain possession when although property, of his own “the de- colleagues easy,” my termination

concede.7 colleagues my

I leave

placed themselves. operate quit possession

was to as a notice to The landlord is still without days’ statutory quit property that the notice to of his which should have been expressly Repeatedly remodeling sale, there- waived. to him for available or pay- might after tenant default even the structure justify ment of rental. As of October razed. Unless condition could authority, neither the nor her coun- its condemnation lawful appeared option sel Landlord-Tenant should have been as to future property. of General Branch of the Court Sessions. use of the reopen judg- later motion to a default A difficult for me to understand how granted, two-day depri- fol- ment was trial this court can sustain so studied a lowed, and a directed verdict for the vation as here occurred. landlord was entered. stay judg- court was asked And This with the in riot-torn results Wash- ington prospect painfully ment after District of Columbia so obvious the Appeals being opened up may I Court of then dissented from this court’s order for refused do so. now hor- seem indeed, rendous whether “violations” reasons set forth Edwards committed were tenants them- Habib, U.S.App.D.C. 49, 51, others conduct selves whose cre- to which I now refer. ated conditions with which the landlord meanwhile, again, cope. accept premise time and fur- In ther defaults must I cannot resulting remotely occurred entertained my colleagues harassment and to the landlord “intent” vexation confidently proclaim. court often overlooked. is an al Notes there a Revised comes into (1962); Lewis, L.Rev. leged Amend Mean- Fourteenth denial of the 473 Coltjm.L. equal protection guarantee. Action, State State 60 ment’s required 1083, Poliak, (1960); Rev. also action is 1108-1120 doctrine was In- Fifteenth Amendment. The Racial Discrimination and Judicial Rights Cases, 109 tegrity: Reply born the Civil A Wech- Professor 11, 18, 3, L.Ed. 835 sler, (1959). 3 S.Ct. 27 108 Ú.Pa.L.Rev. U.S. 1 has (1883), suggested severely Wechsler, been it has also been and criticized. died, long Principles least where Toward it has since Constitu- Neutral Law, 1, 73 Habv.L.Rev. involved. tional racial discrimination 29 Action,” Black, (1959). “State Foreivord: Equal Protection, California’s 226, Maryland, 10. Bell v. State of 378 U.S. 69, Proposition 14, 84- 81 Harv.L.Rev. 331, 1814, 84 S.Ct. 12 822 L.Ed.2d concept (1967). The “state 91 action” opinion (dissenting of Mr. Justice Amendment where First is also relevant Black). dissenting opinion But see g., See, e. Marsh are at stake. freedoms Douglas Mr. in Black v. Justice Cutter 501, 66 Alabama, 326 U.S. v. State of Laboratories, 292, 300, 351 U.S. 76 S.Ct. 276, (1946). L.Ed. 265 90 S.Ct. 824, (1956), L.Ed. 100 1188 Shelley joined. been called “constitutional Mr. has Justice Black Professor Finnegan’s Kurland, Poliak, Shelley rightly Wake.” law’s who thinks “Equal Origin decided, apparently Foreword: would limit it Equal Legislative way. sought in Title to the much the same “The line beyond the Govern Executive Branches be drawn which the 143, ment”, private seeing 148 person Harv.L.Rev. 78 state assists sought many have to it And commentators that others behave a fashion explains key adequately it. which the could not itself have skeleton 692 interpre urged however, that at different least where racial discrimination have Shelley, equal ex would is involved ones which the state denies the tations of beyond protection principle facts but it does not tend its law when rights, private affirmatively equal protec- act to assure certain still leave enforced, against legislating privately immune judicially tion ini- even when tiated, governmental, on restraints from the Constitution’s as well as discrim- | government. 1ination.12 But these commentators are point Shelley careful out that should suggested Some commentators have not be read cannot to hold that a state subject to consti- action is enforce discrimination which could scrutiny only the state tutional when view, encouraged is, not itself make.13 it.11 There sanctioned suggested gone Qthers have unconstitutional inaction ex- further principle underlying erty private body, ordained. The to a Burton v. Wil- mington Parking Authority, distinction this: fourteenth 365 U.S. permits personal 715, 856, (1961), amendment prejudices each his 81 S.Ct. 6 L.Ed.2d 45 guarantees operations him free or where a common carrier’s speech press worship, together state, are authorized McCabe v. degree Atchison, Topeka with a prise, Ry. Co., of free economic enter- & Santa Fe per- 151, as instruments which to 161-162, 69, 235 U.S. S.Ct. adopt prejudices; suade (1914), others or where because of to state aid to induce access others discrimination those discriminated Poliak, against equal to conform is barred.” gov- are denied access to 9, Note at 13. ernmental benefits. Simkins v. Moses H. Hospital, Cir., Cone Memorial 323 F.2d 11. As the Court felt did Reitman cert, (1963), denied, 938, 376 U.S. Mulkey, 369, 377, 387 U.S. 793, (1964); 84 S.Ct. 11 L.Ed.2d 659 1627, (1967); 18 L.Ed.2d 830 Lombard Derrington Plummer, Cir., 240 F.2d Louisiana, 267, 273, v. State of 373 U.S. cert, 922, (1956), denied, 925-926 1122, (1963); 83 S.Ct. 10 L.Ed.2d 338 924, 680, U.S. 77 S.Ct. 1 L.Ed.2d 719 Jackson, Barrows v. 346 U.S. Rights Act, The 1964 Civil 73 S.Ct. L.Ed. along with the inter- Court’s This is the traditional view sanctioned pretation City of it in Hamm v. of Rock Rights Cases, supra in the Civil Note 8. Hill, 85 S.Ct. 13 L.Ed. Guest, But see United States mooted, 2d 300 at least for 745, 755-756, 16 L.Ed.2d being, question what, the time Bullock v. United any, required bring state action is cert, Cir., denied, 265 F.2d Fourteenth Amendment to bear 3 L.Ed.2d privately public owned accommodations. (1959); Kasper Brittain, Cir., denied, See, g., Black, supra cert. e. at 73- 74; Silard, L.Ed.2d Brew A Constitutional Forecast:

Case Details

Case Name: Yvonne C. Edwards v. Nathan Habib

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

Date Published: Jul 11, 1968

Citation: 397 F.2d 687

Docket Number: 20883_1

Court Abbreviation: D.C. Cir.