397 F.2d 687 (D.C. Cir. 1968), 20883, Edwards v. Habib

Docket Nº:20883.
Citation:397 F.2d 687
Party Name:Yvonne C. EDWARDS, Appellant, v. Nathan HABIB, Appellee.
Case Date:May 17, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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397 F.2d 687 (D.C. Cir. 1968)

Yvonne C. EDWARDS, Appellant,

v.

Nathan HABIB, Appellee.

No. 20883.

United States Court of Appeals, District of Columbia Circuit.

May 17, 1968

Argued Jan. 22, 1968.

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Mr. Brian Michael Olmstead, Des Moines, Iowa, with whom Mrs. Florence Wagman Roisman, Washington, D.C., was on the brief, for appellant.

Mr. Herman Miller, Washington, D.C., for appellee.

Messrs. Charles T. Duncan, Corporation Counsel for the District of Columbia, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton and David P. Sutton, Asst. Corporation Counsel, filed a brief on behalf of the District of Columbia as amicus curiae, urging reversal.

Mr. Reuben B. Robertson, III, Washington, D.C., filed a brief on behalf of the National Capital Area Civil Liberties Defense and Education Fund as amicus curiae, urging reversal.

Before DANAHER, WRIGHT and MCGOWAN, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

In March 1965 the appellant, Mrs. Yvonne Edwards, rented housing property from the appellee, Nathan Habib, on a month-to-month basis. Shortly thereafter she complained to the Department of Licenses and Inspections of sanitary code violations which her landlord had failed to remedy. In the course of the ensuing inspection, more than 40 such violations were discovered which the Department ordered the landlord to correct.

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Habib then gave Mrs. Edwards a 30-day statutory notice 1 to vacate and obtained a default judgment for possession of the premises. 2 Mrs. Edwards promptly moved to reopen this judgment, alleging excusable neglect for the default and also alleging as a defense that the notice to quit was given in retaliation for her complaints to the housing authorities. Judge Greene, sitting on motions in the Court of General Sessions, set aside the default judgment and, in a very thoughtful opinion, concluded that a retaliatory motive, if proved, would constitute a defense to the action for possession. 3 At the trial itself, however, a different judge apparently deemed evidence of retaliatory motive irrelevant and directed a verdict for the landlord.

Mrs. Edwards then appealed to this court for a stay pending her appeal to the District of Columbia Court of Appeals, and on December 3, 1965, we granted the stay, provided only that Mrs. Edwards continue to pay her rent. Edwards v. Habib, 125 U.S.App.D.C. 49, 366 F.2d 628 (1965). She then appealed to the DCCA, which affirmed the judgment of the trial court. 227 A.2d 388 (1967). In reaching its decision the DCCA relied on a series of its earlier decisions holding that a private landlord was not required, under the District of Columbia Code, to give a reason for evicting a month-to-month tenant and was free to do so for any reason or for no reason at all. 4 The court acknowledged that the landlord's right to terminate a tenancy is not absolute, but felt that any limitation on his perrogative had to be based on specific statutes or very special circumstances. 5 Here, the

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court concluded, the tenant's right to report violations of law and to petition for redress of grievances was not protected by specific legislation and that any change in the relative rights of tenants and landlords should be undertaken by the legislature, not the courts. We granted appellant leave to appeal that decision to this court. We hold that the promulgation of the housing code by the District of Columbia Commissioners at the direction of Congress impliedly effected just such a change in the relative rights of landlords and tenants and that proof of a retaliatory motive does constitute a defense to an action of eviction. Accordingly, we reverse the decision of the DCCA with directions that it remand to the Court of General Sessions for a new trial where Mrs. Edwards will be permitted to try to prove to a jury that her landlord who seeks to evict her harbors a retaliatory intent.

I

Appellant has launched a constitutional challenge to the judicial implementation of 45 D.C. CODE §§ 902 and 910 in aid of a landlord who is evicting because his tenant has reported housing code violations on the premises. We do not, however, reach the question whether it is unconstitutional for the court to apply the statute in such circumstances because we think Congress never intended that it be so applied. Nevertheless, because constitutional considerations inform the statutory construction on which our decision rests, we do discuss them briefly. 6

Appellant argues first that to evict her because she has reported violations of the law to the housing authorities would abridge her First Amendment rights to report violations of law and to petition the government for redress of grievances. But while it is clear beyond peradventure that the making of such complaints is at the core of protected First Amendment speech, 7 and that punishment, in the form of eviction, if imposed by the state would unconstitutionally abridge First Amendment rights, it is equally clear that these rights are rights against government, not private parties. Consequently, before appellant can prevail on this theory she must show

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that the government is in some relevant sense responsible for inhibiting her right to petition for redress of grievances; she must show, in other words, the requisite 'state action.' 8 Appellant seeks to overcome this obstacle by arguing that the use of courts to effect her eviction sufficiently implicates the state as to bring into play constitutional constraints. She relies on an unreported decision of the United States District Court for the Southern District of New York, where the court invoked just such a theory to support the issuance of a preliminary injunction restraining an alleged retaliatory rent increase. Tarver v. G. & C. Construction Corp., S.D.N.Y., November 9, 1964.

There can now be no doubt that the application by the judiciary of the state's common law, even in a lawsuit between private parties, may constitute state action which must conform to the constitutional strictures which constrain the government. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This may be so even where the court is simply enforcing a privately negotiated contract. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). But the nature and extent of the judicial involvement required to bring into play these constitutional constraints is unclear. The central case is, of course, Shelley v. Kraemer, where the Court ruled that judicial enforcement of private agreements containing restrictive covenants against selling to Negroes violated the Fourteenth Amendment's command that 'no State shall * * * deny to any person within its jurisdiction the equal protection of the laws.' But the contours of Shelley remain undefined and it is uncertain just how far its reasoning extends. 9 Judge Greene declined to rest his opinion on Shelley for fear that if, for constitutional purposes, every private right were transformed into governmental action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated. He accepted the reasoning of Mr. Justice Black, who joined in the Shelley opinion but has since maintained that its doctrine applies only where, as in Shelley itself, the court is called upon to upset a transaction between a willing buyer and a willing seller. 10 Others,

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however, have urged different interpretations of Shelley, ones which would extend its principle beyond its facts but would still leave certain private rights, even when judicially enforced, immune from the Constitution's restraints on government.

Some commentators have suggested that private action is subject to constitutional scrutiny only when the state has encouraged or sanctioned it. 11 Others have gone further and suggested that at least where racial discrimination is involved the state denies the equal protection of the law when it does not act affirmatively to assure equal protection by legislating against privately initiated, as well as governmental, discrimination. 12 But these commentators are careful to point out that Shelley should not be read to hold that a state cannot enforce any discrimination which it could not itself make. 13 There is, on this view, unconstitutional action by inaction except

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in those situations where the Constitution itself demands inaction; that is, in those situations where the state could not legislate equality because to do so would impinge on the individual discriminator's countervailing rights of liberty, property and privacy. 14 The state, through its police or courts, could aid an individual in his quest to keep Negroes from a dinner party in his home even though it could not keep Negroes from a courthouse cafeteria 15 or even from a privately owned hotel solely on account of their race. Consequently this theory might dull, but it would not obliterate, the distinction between private and state action.

Were this analysis of state action by inaction under the equal protection clause unqualifiedly applied where the question was governmental action under the First Amendment, there is no doubt that Mrs. Edwards' eviction could not be sustained. Not only would be government have failed to protect her against private reprisals for the exercise of her First Amendment rights (and clearly it could constitutionally protect her if it chose to do so), 16 but it would, through its court, actually be aiding the individual who seeks to intimidate the exercise of those rights. 17 It may be, however, that what is state action under Fourteenth Amendment is not always state action under the First. To begin with, the Reconstruction amendments were enacted with a...

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