U.S. v. Northside Realty Associates, Inc.

• Decision Date: 04 September 1975
• Docket Number: No. 74-1414,74-1414
• Citation: 518 F.2d 884
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 884

518 F.2d 884

UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., et al., Defendants-Appellants.

No. 74-1414.

United States Court of Appeals, Fifth Circuit.

Sept. 4, 1975.

Harold L. Russell, Lloyd Sutter, Atlanta, Ga., for defendants-appellants.

William B. Saxbe, Atty. Gen., Dept. of Justice, Jerris Leonard, Asst. Atty. Gen., Frank E. Schwelb, Chief, Housing Section, Civ. Rights Div., David T. Kelley, Harold H. Moore, Atty., J. Stanley Pottinger, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., Asst. U. S. Atty., Atlanta, Ga., Thomas N. Keeling, Housing Section, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion September 23, 1974, 5 Cir., 1974, 501 F.2d 181).

Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In a spirited Petition for Rehearing and Rehearing En Banc, the Appellant principally argues that United States v. Northside Realty Associates, Inc., 5 Cir., 1974, 501 F.2d 181 (Northside II ) and United States v. Northside Realty Associates, Inc., 5 Cir., 1973, 474 F.2d 1164 (Northside I ) conflict with the intervening decision of this Court in United States v. Pelzer Realty Co., 5 Cir., 1973, 484 F.2d 438. But in no sense does the Petition for Rehearing and more important the supporting brief stop there.

While we understand Appellant's concern regarding the disposition of this case, we are struck by counsel's excessive language in Appellant's brief on petition for rehearing, riddled as it is with inaccuracies.

First, Appellant asks that

somebody examine the facts of this case and make a considered judgment on the question whether there has been a denial of rights raising an issue of general public importance. 1 The district court did not do it; this Court did not do it; and no Attorney General has done it.

(Petition for Rehearing Brief for Appellant at 2, Northside II ).

Contrary to Appellant's statement above, the Government did in fact claim a "pattern and practice of resistance" and therefore asks for an injunction. ¹ Further, the District Court's Order of December 30, 1971 specifically held that a group of people had been denied the protection of the Fair Housing Act as claimed by the Government and an injunction was appropriate. ²

This Court also recognized that the Government sought injunctive relief and claimed a pattern and practice of resistance to the Fair Housing Act, thus raising an issue of general public importance. Northside I, 474 F.2d at 1165. And, except for the infection of the unconstitutional "penalty" on the realtor for obdurate opposition to the Act, we stated that the finding was amply supported, and we remanded for a further explanation of the reasons for a finding of discrimination and whether they were tainted by this impermissible burden. ³

On remand the District Court clarified its original opinion to specifically hold that Northside's Vice-President Isakson's challenge to the constitutionality of the Fair Housing Act was not a consideration in its finding of a violation of the Act, and that its decision stood on more than the single incident with Bowers that the Bowers pre-Act incident was used to highlight the similarity to other discriminatory incidents that followed. Supplemental Appendix at 14, Northside II.

When appealed to this Court for the second time, we reviewed the District Court's new order and determined that the District Court had complied with the guidelines in our earlier opinion, see note 3, supra, and therefore affirmed the decision. Northside II, supra, 501 F.2d at 182.

In language reflecting an unfortunate absence of professionalism, counsel for appellant next inveighs against our failing to mention and follow a Fourth Circuit opinion holding that the Government must prove discrimination of general public importance before granting injunctive relief. ⁴ Perhaps counsel is not aware that this Court is bound only by decisions of this Circuit and the Supreme Court of the United States. However, in this instance, counsel has been doubly wrong since we have in fact even complied with the standards of the Fourth Circuit for the District Court recognized that the Government had the burden of proof in showing a violation of the Fair Housing Act. ⁵ Moreover, Hunter is of little help to appellant's argument. In that case, the Fourth Circuit held two isolated, allegedly discriminatory acts insufficient to establish a pattern or practice of resistance. 459 F.2d at 217. Nonetheless, the Hunter Court held that, under the same facts, the Government "clearly" had established its right to bring the case as raising an issue of general public importance. 459 F.2d at 217-218. Hunter thus is of little solace to a party arguing that even though a violation of the Fair Housing Act has been established, the issue is still not one the Attorney General might deem to be of public importance. After an examination of the facts, the District Court then determined that the burden had been met and held that this "denial is of sufficient public importance to authorize the relief herein granted." Supplemental Appendix at 17, Northside II. And one relief specifically listed for violations of the Fair Housing Act is an injunction. ⁶

Appellant next asserts that inconsistencies exist in our final opinion in Northside II, asserting that in one breath we state that what is an issue of public importance is within the discretion of the Attorney General, and in the other that it did not matter that the Attorney General had failed to make such a determination here. ⁷ The only inconsistency, however, seems to be in counsel's misreading of what is actually there. We stated in both Northside I & II that the determination of what is an issue of public importance in order to bring an action under the Fair Housing Act is within the Attorney General's discretion. Northside, supra, 501 F.2d at 182, 474 F.2d at 1168. Appellant urges that whenever a new Attorney General is appointed, that person must re-examine every case for a fresh determination of public importance. As the District Court so ably reasoned, ⁸ such a position is without merit. Once a determination of public importance has been made by an Attorney General, the Government is the party and the case proceeds.

Here, a determination of public importance was made, a new Attorney General was appointed and the District Court found a violation of the Act. To ask for a fresh determination of probable cause by a new Attorney General after the District Court has already found a violation of the Act would be entirely superfluous. Accordingly, we said in our former opinion that in "view of our holding that the district court found facts sufficient to support a violation of the Act, we find no merit in defendants' final contention." Northside II, supra, 501 F.2d at 182.

Finally, counsel, obviously piqued, begs somebody to look at the facts of the case and discover that the wholly innocent employees at Northside have been unjustly marred by having an injunction placed on them against violating the Fair Housing Act. Such an unfounded holding, Appellant goes on, supports a "belief" that the Court is so overburdened and overworked that it cannot properly dispense justice. ⁹ This is akin to another litigant's contention, labelled by us as "intemperate," that his case had not received careful consideration and scrutiny by the Judges of the Court. See George W. Bennett Bryson & Co., Ltd. v. Norton Lilly & Co., Inc., 5 Cir., 1974, 502 F.2d 1045, 1047.

But contrary to these charges this Court, while undoubtedly one of the Nation's busiest Courts, gives earnest consideration to every case, and certainly, as its history reflects, in the field of civil rights and race discrimination. Of course, in this travail we rely heavily on the quality of the briefs and arguments submitted by the attorneys.

We have twice looked at the evidence but to assure that no slight has been done either to the realtor or the law, we now review it a third time.

Northside has sold more than 3,000 homes since the effective date of the Fair Housing Act none to a black person. And before this action was filed, no single family dwellings were sold to black persons. As we once said:

" . . . figures of this kind, while not necessarily satisfying the whole case, have critical, if not decisive, significance "

Rowe v. General Motors Corporation, 5 Cir., 1972, 457 P.2d 348, 358. But the zero does not stand alone in the evidence box.

Prior to the effective date of the Fair Housing Act, a Mr. Bowers a black person was turned away from Northside Realty by Vice-President Isakson with the statement that Mr. Bowers could not afford a house in a certain price range. Without showing housing in a price range he could afford, Mr. Isakson referred Mr. Bowers to a Negro-owned real estate firm in Atlanta.

Post-Fair Housing Act, Mr. Isakson indicated to a black college professor that he could not help him in finding a house and referred him to another agency. Further, Mr. Isakson's statements to black realtor Harold Dawson indicated Mr. Isakson's unwillingness to cooperate or deal with black realtors and their clients. The record contains further evidence detailed by the District Court that Northside and its employees and agents have created an image and unwillingness to help black clients. The District Court had ample basis for concluding that Northside Realty, far from having "spotless records of compliance with the law," has violated the Fair Housing Act so as to require enjoining Northside from further violations of the Act. Moreover, the District Court could reasonably have determined that only by ordering compliance with the Act at all levels of Northside's operations could the...