Mayers v. Ridley

• Citation: 465 F.2d 630
• Decision Date: 30 June 1972
• Docket Number: No. 71-1418.,71-1418.
• Parties: Daniel K. MAYERS et al., Appellants v. Peter S. RIDLEY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

465 F.2d 630 (1972)

Daniel K. MAYERS et al., Appellants v. Peter S. RIDLEY et al.

No. 71-1418.

United States Court of Appeals, District of Columbia Circuit.

Reconsidered March 1, 1972.

Decided June 30, 1972.

Mr. Michael J. Waggoner, Washington, D. C., with whom Messrs. Jack B. Owens and Ralph J. Temple, Washington, D. C., were on the brief, for appellants.

Mr. Ted. D. Kuemmerling, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellees.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, en banc.

On Reconsideration En Banc

PER CURIAM :

Appellants, a group of District of Columbia residents representing the class of homeowners whose property is burdened by racial covenants, instituted this suit to enjoin the Recorder of Deeds from accepting such covenants for filing in the future and to require the Recorder to affix a sticker on each existing liber volume stating that restrictive covenants found therein are null and void. They also asked for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. The District Court dismissed their complaint, 330 F.Supp. 447 (1971), and a three-judge panel of this court affirmed that judgment. On reconsideration en banc of the judgment of the District Court we now reverse.

Reversed and remanded.

J. SKELLY WRIGHT, Circuit Judge, with whom BAZELON, Chief Judge, and SPOTTSWOOD W. ROBINSON, III, Circuit Judge, join, concurring :

Appellants in this action are a group of District of Columbia residents representing the class of homeowners whose property is burdened by illegal¹ racial covenants.² They instituted this suit in order to enjoin the Recorder of Deeds from accepting such covenants for filing in the future. Moreover, they seek certain corrective measures which would withdraw state approval from restrictive covenants already on file. Specifically, they ask for a declaration that their rights have been violated by the recording of racial covenants, for an order requiring the Recorder to affix a sticker on each liber volume stating that restrictive covenants found therein are null and void, and for an injunction preventing the Recorder from providing copies of instruments on file unless a similar notice is attached to the copies. When the District Court dismissed their complaint, appellants renewed their arguments in this court. A three-judge panel held that the District Court should be affirmed, whereupon a majority of the judges of this court voted to reconsider the case en banc. We reverse.

For decades, the Recorder's office has accepted these covenants for filing and maintained them as public records.³ Appellants contend that this official legitimization of racist agreements so deeply involves the state in private discrimination as to violate the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Cf. Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). Moreover, appellants argue, even if the Recorder's actions are constitutional, they entail the making and publication of a notice or statement of a racial preference with respect to the sale of a dwelling and, hence, are unlawful under Title VIII of the Fair Housing Act of 1968. See note 1 supra. Finally, appellants point to local statutes which permit the Recorder to accept only those documents "affecting the title or ownership of real estate," 45 D.C. Code § 701(a) (1) (1967), and which forbid him from recording instruments "not * * * executed * * * agreeably to law." 45 D.C.Code § 503 (1967). Since restrictive covenants have not affected "the title or ownership of real estate" since Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), and have not been "agreeable to law" since passage of the Fair Housing Act of 1968, appellants argue, the Recorder exceeds his statutory mandate when he accepts these documents for filing.

In response, appellees decline to meet appellants' constitutional argument. Instead, they contend that exclusion of restrictive covenants is not required by the Fair Housing Act, that such an exclusionary rule would be burdensome to administer and beyond the Recorder's statutory authority, and that in any case appellants suffer no harm because of the void covenants. For the reasons stated below, we find each of appellees' arguments unconvincing. Although they can be attacked separately on their respective merits, it is worth observing at the outset that in the aggregate they amount to no more than the sort of lame excuses for denial of racial justice which the Supreme Court rejected long ago. See, e. g., Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 234, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) ; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) ; Barrows v. Jackson, 346 U.S. 249, 257-259, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).

The evils emanating from governmental acceptance of housing discrimination permeate our entire society. Generations of governmental participation in racial zoning have yielded a bitter harvest of racially segregated schools, unequal employment opportunity, deplorable overcrowding in our center cities, and virtually intractable racial polarization. See Hearings Before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency on S. 1358 etc., 90th Cong., 1st Sess., at 46-47 (1967) ; Report of the National Advisory Commission on Civil Disorders 204, 244-245 (N.Y. Times paperback ed. 1968). It is too late in the day to argue that it is burdensome to correct these historic wrongs, or that government officials lack statutory authority to do so. These are the sorts of arguments which "have no place in the jurisprudence of a nation striving to rejoin the human race," Jones v. Alfred H. Mayer Co., 392 U.S. 409, 449 n. 6, 88 S.Ct. 2186, 2208, 20 L.Ed.2d 1189 (1968) (Mr. Justice Douglas, concurring), and which we accept at the peril of incurring a racial holocaust.

I. Appellants' Statutory Arguments

A. The Fair Housing Act of 1968

Title VIII of the Fair Housing Act of 1968, 42 U.S.C. § 3604(c) (1970), makes it unlawful, with certain exceptions, "to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, or national origin, or an intention to make any such preference, limitation, or discrimination."

In its opinion accompanying dismissal of appellants' complaint, the District Court found that the "plain import" of these words prohibited no more than conventional advertising indicating a racial preference. "The language cannot reasonably be tortured to embrace anything more." With due respect to Judge Corcoran, it seems clear to us that no "torturing" is required to extract more than this rigid result from the statutory language. On its face the Act prohibits making or publishing any "notice, statement, or advertisement" indicating a racial preference. (Emphasis added.) Unless the words "notice" and "statement" are to be treated as surplusage, they must mean that the Act prohibits at least some communications which cannot be classified as advertisements. Although the legislative history of this section is sparse, it indicates beyond doubt that, as the words themselves suggest, Congress intended to go beyond advertising to reach other sorts of "notices" and "statements" as well. See, e. g., Hearings Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary on S. 3296 etc., 89th Cong., 2d Sess., at 1105 (1966). Of course, the main purpose of a restrictive covenant is to give notice of a racial preference. And even if the word "notice" is defined in its narrowest possible sense, the covenants surely fall within the broader category of "statements."

Nor can it be doubted that when the Recorder files restrictive covenants he "makes, prints, and publishes" these notices and statements. It might be argued that the Recorder prints the covenants when he causes them to be reproduced for purposes of preservation and inspection. But more broadly, he certainly publishes them by collecting them in a manner that facilitates access to them by prospective buyers. Black's Law Dictionary at 1396 (4th ed. 1951) defines "publication" as "to exhibit, display, disclose or reveal." The whole purpose of the Recorder's office is to exhibit deeds in a convenient fashion so as to disclose or reveal possible clouds on the chain of title. To be sure, the Recorder does not "publish" the deeds in the sense that a newspaper publishes news copy. But we must, of course, presume that the statute was carefully drafted and that no part of it is redundant. If the framers had intended to limit the clause to publication of racial preferences in newspapers, the prohibition against "printing" notices and statements would have been sufficient to serve their purpose. The additional proscription against "publication" should therefore be read more broadly to bar all devices for making public racial preferences in the sale of real estate, whether or not they involve the printing process. Cf., e. g., In re Publishing Docket in Local Newspaper, 266 Mo. 48, 49, 187 S.W. 1174, 1175 (1913). And when the clause is so read, it can scarcely be doubted that the Recorder's publication of racial covenants falls squarely within the statutory prohibition.

Finally, the statute's effect is limited to making, printing and publishing notices, statements and advertisements "with respect to the sale or rental of a dwelling that indicates any racial...