Cornelius v. City of Parma

• Decision Date: 22 February 1974
• Docket Number: No. C 73-437,C 73-439.,C 73-437
• Citation: 374 F. Supp. 730
• Parties: Jacqueline CORNELIUS et al., Plaintiffs, v. CITY OF PARMA et al., Defendants, UNITED STATES, Plaintiff, v. CITY OF PARMA, Defendant.
• Court: U.S. District Court — Northern District of Ohio

374 F. Supp. 730

Jacqueline CORNELIUS et al., Plaintiffs, v. CITY OF PARMA et al., Defendants, UNITED STATES, Plaintiff, v. CITY OF PARMA, Defendant.

Nos. C 73-437, C 73-439.

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

February 22, 1974.

Avery S. Friedman, Cleveland, Ohio, Jay Mulkeen, Nat. Committee Against Discrimination in Housing, Washington, D. C., for Jacqueline Cornelius.

Norman P. Goldberg, David L. Norman, Michael E. Barrett, Dept. of Justice, Washington, D. C., for the U. S.

Andrew Boyko, Robert R. Soltis, Parma, Ohio, for City of Parma.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

I. INTRODUCTION

These are consolidated cases challenging housing practices pursued by the City of Parma, Ohio.

C 73-439 (hereinafter referred to as the Government's suit) was instituted by the Attorney General, on behalf of the United States, pursuant to Section 813 of the Fair Housing Act of 1968, 42 U.S.C. § 3613 and 28 U.S.C. § 1345. The Government alleges that it has been the policy of Parma to exclude black persons from residing within its limits in any significant numbers, and that the City in accordance with this policy has engaged in acts and practices which effectively operate to deny equal housing opportunity to blacks on account of race. More specifically, the Government charges that Parma in the fall of 1971 refused to issue a building permit to allow the construction of a federally assisted apartment development by Forest City Enterprises, an Ohio corporation, for the reason that the development would have provided opportunity for a substantial degree of desegregated occupancy within the boundaries of the City. Additionally, the Government challenges ordinances enacted by initiative vote of the Parma electorate at about the same time as the apartment development was blocked by Parma officials.

One of these ordinances generally limits the height of residential buildings to be constructed in Parma to thirty-five feet. The other provides that "no low-rent housing project shall be developed, constructed or acquired in any manner in the City by any public body or authority, nor shall approval be granted for participation in the Federal Rent Supplement Program, until a majority of the qualified electors of the City voting upon such issue approve such project or such participation by voting in favor thereof at an election to be held for that purpose or at the next primary or general election."¹

It is contended that these ordinances, although facially neutral, were enacted for the purpose of preventing the construction in Parma of racially integrated housing for persons of low and moderate income and, in the context of Parma's longstanding posture toward such housing, have had such an effect.

Parma's conduct, it is alleged, constitutes a pattern and practice of resistance to the full enjoyment of rights secured by Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., and by the Thirteenth and Fourteenth Amendments to the United States Constitution, as well as a denial of rights to equal opportunity in housing, raising an issue of general public importance. This conduct has allegedly worked to:

(a) perpetuate the present all-white character of the City;

(b) deny dwellings to prospective black residents of the excluded housing on account of race;

(c) deny dwellings to prospective white residents of such housing on account of the race of their black prospective fellow-residents; and

(d) interfere with the right of actual and prospective sponsors of federally assisted housing to assist persons in exercising their right to equal housing opportunity.

The Government seeks an order generally enjoining Parma and all its agents and officers from continuing to pursue its discriminatory housing practices and affirmative relief aimed at having the City undertake measures to correct the effects of its past unlawful conduct.

By memorandum opinion and order dated September 5, 1973, this Court denied Parma's motion to dismiss the Government's suit. It was ruled inter alia that a municipality is a "person" subject to suit under Section 3613 of the Fair Housing Act, and that the Government's complaint stated a claim for relief.

C 73-437 (hereinafter referred to as the Cornelius suit) was initially instituted by the Cleveland Chapter of the NAACP; the Housing Task Force; the Ozane Construction Company; five low and moderate income black plaintiffs presently residing in the Cleveland Metropolitan Area (but not Parma) who allege that they desire to reside in Parma but are prevented from doing so by the alleged racially discriminatory practices and policy of the City; and two white citizens of Parma charging that Parma's discriminatory policy deprives them of the social, economic, and professional benefits of an integrated community. The action seeks redress for alleged violations of rights secured by the Thirteenth and Fourteenth Amendments, the Civil Rights Act of 1866 (42 U.S.C. § 1981, § 1982), the Civil Rights Act of 1871 (42 U.S.C. § 1983), and the Fair Housing Act of 1968 (42 U.S.C. § 3601). Jurisdiction is predicated on 28 U.S.C. § 1343(3) and (4), 28 U.S.C. § 2201, and 42 U.S.C. § 3612. The named defendants are the City of Parma, its Mayor, its President of the City Council, and its Councilmen.

The complaint in Cornelius sets forth detailed allegations relative to the racial composition of defendant City and the circumstances surrounding Parma's blocking of the Forest City section 236 project. It is alleged, for example, that while Parma is the largest suburb in Cuyahoga County, having a population of approximately 100,216 residents, only .015% of the black population of the County, or fifty persons, reside in the City.

A fair reading of the complaint indicates that its basic thrust is directed against Parma's adoption and implementation of the ordinances previously discussed in regard to the Government's suit. It is alleged that the City's conduct, in enacting and implementing these ordinances, was aimed at setting up barriers to exclude low and moderate income blacks and other minorities from living in the City. The ordinances are said to have the further effect of maintaining the virtually all-white character and image of Parma, depriving white residents of Parma of the benefits of an integrated community, discouraging prospective builders and sponsors of low-income housing from building within the City of Parma, interfering generally with federally assisted housing programs, and excluding blacks and other minorities from equal access to jobs in the Parma area as well as equal access to educational opportunities. The plaintiffs in Cornelius seek as relief a declaration that the ordinances are void and of no effect, an injunction against Parma and its agents from engaging in further discriminatory housing practices and affirmative remedial action.

In a memorandum opinion and order dated September 18, 1973, the Court made the following rulings:

(1) The Cleveland Branch of the NAACP, the Ozane Construction Company, and the Housing Task Force lacked standing to sue.

(2) The action was untimely brought under 42 U.S.C. § 3612 of the Fair Housing Act, which expressly sets forth a 180 day limitations period.

(3) Insofar as plaintiffs' complaint sought relief under 42 U.S.C. § 1983 against the City of Parma, it was dismissed.

(4) The white individual plaintiffs lacked standing to sue under 42 U.S.C. § 1982.

(5) The black individual plaintiffs could maintain their suit as a class action pursuant to 23(b)(2) F.R.Civ.P.²

II. PRESENT MOTIONS

Plaintiffs in Cornelius have filed several motions praying the Court to reconsider portions of its order of September 18, 1973. Plaintiffs seek reconsideration of: (a) the dismissal of plaintiffs' claim under the Fair Housing Act of 1968 and (b) the ruling that the white plaintiffs lack standing to sue. In addition, motion has been made pursuant to Rule 15 F.R.Civ.P. by the Cleveland Chapter of the NAACP to amend the complaint so that it may set forth allegations which it is contended would suffice to give it standing to sue.

By order dated November 9, 1973, the Court raised on its own motion whether plaintiffs, or any of them, in the Cornelius suit satisfy the threshold requirement imposed by Article III of the Constitution of alleging an actual case or controversy, and whether any or all the issues sought to be litigated by the Government in its suit are justiciable. In support of their respective positions, the parties submitted briefs, affidavits, and other supporting papers. Hearing was held on all questions pending before the Court on December 10, 1973.

III. CORNELIUS SUIT

A. Justiciability

The judicial power of federal courts is defined in Article III of the Constitution and is restricted to "cases" and "controversies." Giving expression to this case and controversy limitation is the doctrine of "justiciability," which is in itself no more than a "term of art" utilized by the courts to enforce the jurisdictional requirements of Article III. "Justiciability is . . . a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968).

In general, the doctrine of justiciability, in its various aspects, serves to assure that federal courts pass only on questions raised in actual controversies and which are appropriate for judicial determination.

Despite certain references in the Cornelius complaint to Parma's blocking of the section 236...