438 F.2d 781 (1st Cir. 1971), 7726, McQueen v. Druker

Docket Nº:7726.
Citation:438 F.2d 781
Party Name:William McQUEEN et al., Plaintiffs, Appellees, v. Bertram DRUKER et al., Defendants, Appellants.
Case Date:February 24, 1971
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 781

438 F.2d 781 (1st Cir. 1971)

William McQUEEN et al., Plaintiffs, Appellees,

v.

Bertram DRUKER et al., Defendants, Appellants.

No. 7726.

United States Court of Appeals, First Circuit.

February 24, 1971

Robert J. Sherer, Boston, Mass., with whom Thomas D. Garvin Jr., and Michael Putziger, of Roche, Carens & DeGiacomo, Boston, Mass., were on brief, for appellants.

Page 782

Michael L. Altman and Brian Michael Olmstead, Dorchester, Mass., for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellees are tenants in a 500 unit apartment complex, Castle Square, in the South End of Boston-- the same subsidized housing facility constructed and operated under section 221(d)(3) of the National Housing Act, 12 U.S.C. § 1715l(d)(3), which was involved in Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). This suit originated when appellant landlord, 1 in accordance with the terms of the lease, notified these tenants in May, 1970, that it was not to be renewed after the July 31, 1970 termination date. Appellees brought this action under 42 U.S.C. § 1983, asserting jurisdiction under 28 U.S.C. §§ 1331, 1343, and seeking an injunction against their threatened eviction; a declaration that eviction must be predicated on cause, with notice, hearing and assurance of alternative housing; and compensatory and punitive damages. 2

The district court found sufficient federal and state involvement to make applicable the due process clauses of the Fifth and Fourteenth Amendments and the First Amendment. It enjoined the eviction, and made two declarations of rights and responsibilities. First, it declared that the statutory scheme for§ 221(d)(3) housing impliedly requires a good-cause notice to evict and that state court proceedings, observing this substantive federal ruling, would provide procedural due process. Second, it declared that, since 'the chief reason' for the landlord's notice to quit was 'associational activities' on behalf of fellow tenants, petitions to the Federal Housing Authority, and litigation, the First and Fourteenth Amendments barred any eviction so grounded. 317 F.Supp. 1122 (D.Mass. 1970).

The large problem for us is whether the landlord's action in exercising his contractual right under the lease not to renew and in seeking to evict appellees, can rationally be said to be such 'state action' as to call into play the Fourteenth Amendment. 3 More precisely, the question is whether the landlord, though not an ostensible agent of the state, has such a relationship with the state that his activities take on the color of state law. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The district court, relying on Colon v. Tompkins Square Neighbors, 294 F.Supp. 134 (S.D.N.Y.), 4 as well as on Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), reasoned that 'With respect to Castle Square, the federal and state governments have elected to place their power, property, and privilege behind the landlords' authority over the tenants, and have insinuated themselves into a position of interdependence with the landlords.'

The landlord claims that this case involves only 'a regulation of the operations of a private business, not a vesting in it of the functions of government' and argues, citing Grossner v. Trustees of Columbia University in the City of New York, 287 F.Supp. 535, 548 (S.D.N.Y. 1968)

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, that 'the receipt of money from the State is not, without a good deal more, enough to make the recipient an agency or instrumentality of the Government'. He attacks the court's finding in the words of Mr. Justice Harlan's dissent in Wilmington Parking Authority, supra, 365 U.S. at 727, 81 S.Ct. at 862, as the result of 'undiscriminatingly throwing together various bits and pieces'. We do not agree. Our scrutiny of the landlord-state relationship indicates far less privateness in the landlord's enterprise, far more of a governmental function, and 'a good deal more' than receipt of governmental financial help. They are inescapably the 'bits and pieces' on which an ultimate judgment must rest after 'sifting facts and weighing circumstances', Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. 856. We concede that little guidance in making a principled decision is found in such serpentine words as 'insinuated', Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S.Ct. 856, 'involved', Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), 'entwined', Evans v. Newton, 382 U.S. 296, 301, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966), or 'intertwining', Grossner, supra, 287 F.Supp. at 548. Commentators have varied in approving or disapproving this lack of...

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