Cole v. Housing Authority of City of Newport

• Decision Date: 07 December 1970
• Docket Number: No. 7680.,7680.
• Citation: 435 F.2d 807
• Parties: Catherine COLE et al., Plaintiffs, Appellees, v. HOUSING AUTHORITY OF the CITY OF NEWPORT et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

435 F.2d 807 (1970)

Catherine COLE et al., Plaintiffs, Appellees, v. HOUSING AUTHORITY OF the CITY OF NEWPORT et al., Defendants, Appellants.

No. 7680.

United States Court of Appeals, First Circuit.

December 7, 1970.

Victor A. Altman, Washington, D. C., with whom David L. Krooth, J. H. Krug, Washington, D. C., Joseph J. Nicholson, Newport, R. I., and Krooth & Altman, Washington, D. C., were on brief, for appellants.

Barry A. Fisher, Providence, R. I., for appellees.

Christopher Hayes, Clancy, Jonathan Weiss, and E. Judson Jennings, New York City, on brief for Columbia Center on Social Welfare Policy & Law, amicus curiae.

Anthony B. Ching, Cambridge, Mass., Robert E. Mittel, Portland, Me., and Henry M. Feinstein, Cambridge, Mass., on brief for The Harvard Civil Rights — Civil Liberties Research Committee, Pine Tree Legal Assistance, Inc., and Fair Housing Inc., amici curiae.

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

COFFIN, Circuit Judge.

The question on this appeal is whether the district court properly granted summary judgment to two newly arrived citizens of Newport, Rhode Island, who sought to apply to the defendant Newport Housing Authority¹ for admission to its federally-aided, low-rent, public housing projects notwithstanding the Authority's requirement that only those who have been residents of Newport for two years shall be eligible. Cole v. Housing Authority of City of Newport, 312 F.Supp. 692 (D.R.I. 1970).

Plaintiffs assert that the two year durational requirement violates their rights under the Equal Protection clause of the Fourteenth Amendment, entitling them to a cause of action under 42 U.S.C. § 1983, with jurisdiction based on 28 U.S.C. § 1343. In particular, plaintiffs claim, on their own behalf and on behalf of all new residents similarly situated, that the Authority's durational requirement establishes a classification of Newport residents in terms of the length of residence, which impinges upon their constitutional right to travel without serving any legitimate or compelling interest of the Authority. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), say plaintiffs, commands the result they achieved in the district court and seek to have upheld here.²

The facts necessary for considering the important legal issue are few. Each plaintiff is a young mother with two children. One is divorced; one, unmarried. One moved from another state; the other moved from a community within the state. The total income of each is in the form of some kind of public welfare assistance. Each applied for admission to public housing shortly after arriving in Newport and was refused on the ground of failure to satisfy the two-year residency requirement.

While each plaintiff secured private housing, the rental being paid by a welfare allotment, there is no doubt on this record that plaintiffs were disadvantaged in being foreclosed from public housing occupancy. The Authority makes a belated effort to claim that an issue of fact exists as to whether the private housing market was adequate, but its answer admitted an allegation of the complaint that, in June 1969, one of the plaintiffs applied for admission to public housing because of "overcrowded, substandard, and socially undesirable living conditions". Moreover, in argument before the district court, counsel for the Authority conceded that "we could use more low rent housing" and that "there isn't even enough housing to take care of residents". The very fact that one of the plaintiffs, with her two children, was living in a two-room apartment converted from a store front, with a rental of $110 a month, costing $65 a month more than public housing, and the existence of a six-month waiting list of eligible persons awaiting a vacancy in public housing, seem indicative of a continuing insufficiency of decent facilities at a low cost.³

Plaintiffs having been disadvantaged by the Authority's classification, we are required to determine if the classification is a legitimately defensible difference.⁴ In so determining we must first identify the burden of justification the Authority must meet to legitimize the difference. The traditional test requires the difference to be rationally related to a permissible goal.⁵ But if a fundamental personal interest is involved, the difference is legitimately defensible only if it furthers a compelling state interest.⁶ To determine which defense of its classification — rationally related to a permissible goal or rationally related to a compelling state interest — the Authority is required to put forth, we examine the individual interest involved, the right to travel, to determine if it is fundamental.

The Supreme Court has clearly indicated that the right to travel is a fundamental personal right that can be impinged⁷ only if to do so is necessary to promote a compelling governmental interest. Shapiro,supra at 634, 89 S.Ct. 1322. Shapiro struck down a state, one-year residency requirement as a condition for obtaining welfare benefits. The requirement was held to impinge on the right to travel and was not justified by a compelling state interest. But the amount of impact calling for such a justification was not made clear. The Court spoke of the requisite impact in three ways. In discussing the purpose of the durational requirement, it noted the deterrent effect on indigents desiring to migrate and resettle. 394 U.S. at 629, 89 S.Ct. 1322. Subsequently it focused on the post-moving penalizing effect. 394 U.S. at 634, 89 S.Ct. 1322. And finally, in capsuling its holding, it labelled the classification suspect because it "touches on the fundamental right of interstate movement". 394 U.S. at 638, 89 S.Ct. at 1333. That this quoted phrase is not to be taken literally is indicated by the Court's appended footnote 21, at 638, 89 S.Ct. 1322, which held open the possibility that some waiting period or residence requirements might serve a compelling interest or might not be penalties.

Analysis also reveals that the impingement on the right to travel does not have to rise to a fixed level of deterrence.⁸ If a certain amount of travel must be deterred, courts would be faced with the empirical question whether deterrence was actually achieved. Yet in Shapiro, the Court cited no evidence of deterrence but rather assumed that it existed. Similarly, the Court has recently affirmed a decision of a three-judge district court invalidating a state law permitting the superintendent of a state mental hospital to return to their state of former residence persons admitted to the hospital who had not resided in the state for at least one year. Vaughan v. Bower, 313 F.Supp. 37 (D.Ariz.1970), aff'd, 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970). There was no empirical demonstration that this state law deterred anyone from traveling, and logically it would seem doubtful that such a law could have significant deterrent effect. We suspect that few, if any, persons consider the possibility that they will be committed to a mental hospital when they decide to travel interstate.⁹

We conclude that Shapiro stands for the proposition that a rule penalizing travel requires a justification of a compelling state interest. However, it would seem that any durational or residency requirement would penalize persons who have recently exercised their right to travel by denying them benefits granted to other residents. How can this be reconciled with footnote 21 in Shapiro, 394 U.S. at 638, 89 S.Ct. at 1333, which says that some such requirements may be justified because they either promote a compelling state interest or "may not be penalties upon the exercise of the constitutional right of interstate travel"?

The answer, we think, lies in the Court's concept of the right to travel. The Court apparently uses "travel" in the sense of migration with intent to settle and abide.¹⁰ See Note, Shapiro v. Thompson: Travel, Welfare and the Constitution, 44 N.Y.U.L.Rev. 989, 1012 (1969). Thus, laws that comparatively disadvantage persons traveling to take advantage of state benefits and then leaving are permissible under Shapiro. For example, the Court suggested that residency is a reasonable requirement for eligibility to receive welfare benefits but that the one-year waiting period was unconstitutional. Shapiro, supra at 636, 89 S.Ct. 1322, 22 L.Ed.2d 600. Any residency requirement might be thought to penalize the right to travel if "travel" is used in the sense of movement. A resident of Maine vacationing for a month in New Hampshire might be penalized for traveling if he could not obtain the benefits of a library card in New Hampshire during his vacation. Nevertheless, a residency requirement so "penalizing" that kind of travel is probably permissible under Shapiro.¹¹

Under this reading of Shapiro, we need only to ask if the two-year residency requirement penalized persons because they have recently migrated to Newport. Normally, persons eligible for public housing have only to sign up and wait six months for a vacancy. Plaintiffs were required to wait two years before they could be placed on the six-month waiting list. During that time, they were forced to live in substandard housing. Using "penalty" in what appears to be the right context, i. e., not in the sense of a criminal or civil sanction, plaintiffs and others in their class can truly be said to suffer "disadvantage, loss or hardship due to some action".¹²

As a result of penalizing the right to travel, the Authority can successfully defend its residency requirement only by demonstrating that the requirement furthers a compelling state interest. We turn now to a consideration of the interests which the Authority urges justify the discrimination.

The Authority, in the district court, advanced two propositions. It argued first that the public housing program would not be supported by the voters if "the more and better housing they build, the more they...