Holmes v. Leadbetter
| Citation | 294 F. Supp. 991 |
| Decision Date | 16 August 1968 |
| Docket Number | Civ. A. No. 31343. |
| Parties | Avis HOLMES and Lena Bivens, Jointly and Individually, Plaintiffs, v. Thomas LEADBETTER, City Clerk of the City of Detroit, and City of Detroit, a Municipal Corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Arthur M. Bowman, Detroit, Mich., for plaintiffs.
Robert Reese, Corp. Counsel, City of Detroit, Thomas H. Gallagher, Asst. Corp. Counsel, Maurice Kelman, Detroit, Mich., Special Counsel for City of Detroit, for defendants.
Plaintiffs, Negro residents of the City of Detroit, representing themselves and other Negro residents and citizens of Detroit as a class, seek injunctive relief. Jurisdiction is based upon the Civil Rights Act, § 1343(3), Title 28, and Section 1982, Title 42, United States Code. The action concerns Detroit's Fair Housing Ordinance, sometimes referred to as "Open Housing."
In November of 1967 the Common Council of the City of Detroit enacted what was entitled a "Fair Housing Ordinance," No. 300G of Ch. 2, Article 7 of the Code of Detroit, effective December 31, 1967.
Following much activity on the part of those opposed to the ordinance, in January of 1968 the Common Council received a "Petition for Referendum on City Ordinances" requesting repeal of the aforedescribed Fair Housing Ordinance.1 Acting under the authority of T.3, C.2, § 10 of the Charter of the City of Detroit,2 the City Clerk, Defendant Thomas Leadbetter, it is stipulated,3 will submit this ordinance to the electors of the city at the next election. It is to restrain such submission that this action is brought.
In the interests of a speedy determination (in view of the proximity of the cut-off date for the printing of ballots for the next election, at which time the referendum would normally be submitted) it has been agreed that the Court may consider the case upon briefs, oral arguments and stipulated facts, and that permanent as well as preliminary injunction will now be ruled upon. In order, also, that appeal may be expedited, should either party desire appeal, this opinion will serve as findings of fact and conclusions of law. Rule 52(a), F.R. Civ.P.
At the outset we will consider two initial arguments made, one bearing upon the position of the defendants in this litigation, going to jurisdiction, the other upon the essential validity of judicial action with respect to the electoral process. So far as the first is concerned the respondents urge that the position of the city in this matter is essentially one of a disinterested bystander, hence that there is actually no case or controversy between the parties. This position is based upon the proposition that when a referendum petition in due form is properly submitted, and other conditions are met, there is no alternative to putting it on the ballot, regardless of its subject matter. This is indeed a comfortable position, but as we read the cases it is not the law. The books are replete with instances wherein City Councils have refused to place propositions upon the ballots for various reasons. See, McQuillan, Municipal Corporations, 3rd ed. § 16.53 et seq. In fact, in the Michigan case of Burns v. Stenholm, 310 Mich. 639, 17 N.W.2d 781, the Court denied a mandamus to the City Commission of Ironwood to compel them to either adopt an ordinance or submit it to the electors of the city. Moreover, as to the matter of controversy with the defendants, it is undisputed that the proposition is to be placed upon the ballot by defendants, to the plaintiffs' alleged detriment, unless restrained by this Court. Mandamus, we will note, might well have been a more satisfactory vehicle for bringing the issues now before us to decision, since in such case the protagonists of the referendum would have been forced themselves to take affirmative action, but we take the case as we find it and at any rate we are satisfied that there is a controversy between the plaintiffs and the defendants.
It is urged, also, to us that we should not permit a Court to be drawn into what is only a matter (at this stage, at any rate) for the electorate. We agree completely with defendants that the entry of the Court into any stage of the electoral process is a step to be taken only with the utmost caution. But we sit here as a Chancellor. Should the result of our weighing of the equities in the light of settled principles result in our conviction that irreparable harm is likely to result should we fail to act, our course is clear. The fact that an election is involved is, to lapse into the familiar language of the negligence cases, only one of the surrounding circumstances we must consider. It is clear that a United States District Court has the power to enjoin, under proper circumstances, the holding of an election. Hamer v. Campbell, 358 F.2d 215 (C.A. 5, 1966). See, also, Alabama v. United States, 304 F.2d 583 (C.A. 5, 1962), as well as Annotation in 94 A.L.R. 812 (1935), which contains much pertinent material, Tolbert v. Long, 134 Ga. 292, 67 S.E. 826; Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48; Calkins v. Hare, 228 F.Supp. 824, E.D.Mich.1964. In recent situations involving the enjoining of elections concerning open housing, see Otey v. Common Council of City of Milwaukee, D.C., 281 F.Supp. 264, 1968, (permanent injunction granted) and Ranjel v. City of Lansing, 293 F.Supp. 301, W.D.Mich. 1968, Unrep. (permanent injunction granted).
We will turn at once to the merits, to the jugular, so to speak. It is argued by respondents that the electorate is entitled to have any question submitted to it, and that if the voters reject open housing, plaintiffs' rights will nevertheless remain safeguarded by federal and state guarantees. It is argued, also, that in such event there would be, so far as the city is concerned, no more than a restoration of the status quo ante. This argument is based upon the proposition that the Common Council might have kept hands off the issue in the first instance, might, at such time, have adopted a position of strict neutrality. Cf. Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). This being the case, it is said, the rejection of the Open Housing Ordinance would result merely in an affirmation of a neutral position regarding private discrimination, so far as the ordinances of the city are concerned. The argument, in short, is that rejection of the Fair Housing Ordinance by the referendum vote would result simply in doing now what could have been done then, prior to the passage of the Fair Housing Ordinance, and thus the vote is legally unassailable.
The problem here is with the words "now" and "then". The status quo cannot be re-established. Too much has happened, locally and legally. It was only after riot and bloodshed in our community, attributable in part at least, according to petitioners, to the sub-standard conditions under which many of our people live, (amply substantiated by stipulations of record)4 that the Common Council passed the ordinance above quoted, a referendum on which is now sought. It provides as follows:
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...denied, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79; State of Alabama v. United States, 304 F.2d 583 (5th Cir.1962); Holmes v. Leadbetter, 294 F.Supp. 991 (E.D.Mich. 1968). 1. Interplay of Acts 85 and Act 85, the "Act to Guarantee Democratic Rights," provides in essence for a referendum on the......
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