Hope, Inc. v. DuPage County, Ill.

• Decision Date: 26 June 1984
• Docket Number: No. 82-1215,82-1215
• Citation: 738 F.2d 797
• Parties: HOPE, INC., an Illinois not-for-profit corporation, et al., Plaintiffs- Appellees, v. The COUNTY OF DuPAGE, ILLINOIS, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 797

738 F.2d 797

HOPE, INC., an Illinois not-for-profit corporation, et al Plaintiffs- Appellees, v. The COUNTY OF DuPAGE, ILLINOIS, et al., Defendants-Appellants.

No. 82-1215.

United States Court of Appeals Seventh Circuit.

Argued June 1, 1982.

Reargued Jan. 19, 1984.

Decided June 26, 1984.

Don H. Reuben, Reuben & Proctor, Chicago, Ill., for defendants-appellants.

R. Dickey Hamilton, Krupp & Miller, Chicago, Ill., for plaintiffs-appellees.

Before PELL, WOOD, CUDAHY, ESCHBACH, POSNER, COFFEY and FLAUM, Circuit Judges. ^*

COFFEY, Circuit Judge.

The defendants appeal the district court's judgment and decree finding that the defendants "knowingly and intelligently pursued housing policies and practices which were intended to and effectively [did] exclude[ ] persons of low and moderate income and racial minorities from residing in the County." The decree permanently enjoined the defendants from "[e]ngaging in any conduct having the purpose or effect of perpetuating or promoting racial residential discrimination ... or of denying or abridging the right of any person to equal housing opportunity in DuPage County on account of race, color, or national origin...." In addition to this permanent injunction, the decree bars the County from enforcing a considerable portion of its zoning ordinance against housing projects intended for persons with low or moderate incomes, and further, requires the County to develop a 10-year plan to produce a significant number of housing units for low and moderate income families. On appeal, the defendants raise three issues: (1) whether any of the plaintiffs have alleged and/or proven facts sufficient to establish standing to litigate the present action; (2) whether the facts in the record sufficiently establish intentional invidious discrimination; and (3) whether the district court's decree is so unrelated to the plaintiffs' alleged and proven injuries that it should be vacated. We reverse.

I

The plaintiffs-appellees are ten individuals purporting to represent a class of low and moderate income persons seeking adequate housing in DuPage County, Illinois and HOPE, Inc., a not-for-profit corporation based in DuPage County whose purpose is to promote and locate adequate housing for low and moderate income persons. In 1971, the plaintiffs brought this action against DuPage County, Illinois, the members of the DuPage County Board, and certain private landowners and builder-developers alleging that they had engaged in "exclusionary housing practices" which effectively denied adequate housing to racial minorities and persons with low or moderate incomes. In addition, the plaintiffs alleged that the County, the members of the County Board and the defendant landowners and developers had entered into and effectuated a conspiracy to perpetuate the County's discriminatory housing practices. ¹ Jurisdiction was based on 28 U.S.C. Secs. 1331 and 1343. As the preceding allegations reflect, the plaintiffs claimed deprivation of rights protected by the Thirteenth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. Secs. 1981-83, 1985(3) and 2000d. The plaintiffs sought both declaratory and injunctive relief.

The defendants moved for summary judgment asserting that the plaintiffs lacked standing to sue because there was no actual case or controversy properly before the court as required by Article III of the Constitution as it had been interpreted by the United States Supreme Court in Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The district court, in its initial ruling on standing, relied to a great extent on the plaintiffs' conspiracy allegations to distinguish the present case from the facts in Warth. Specifically, the court stated:

"Nevertheless, as in Warth, the plaintiffs have not alleged that the County rejected a proposed project in which they could have lived. The difference in this case is that the major reason plaintiffs cannot make such an allegation is the alleged conspiracy between the developers and the county."

Planning for People Coalition v. DuPage Cty., Ill., 70 F.R.D. 38, 45-46 (N.D.Ill.1976). The court concluded that the individual plaintiffs had asserted the requisite personal injury to establish standing based on their allegations that absent the exclusionary practices of DuPage County and the conspiracy between the County and the developers to accomplish that exclusion, there was a substantial probability that the plaintiffs would be able to find housing in DuPage County adequate for their needs at a price they could afford. See Id. at 46-47. With regard to the plaintiff HOPE, Inc., the district court found that it had standing in its representational capacity since the complaint alleged that a number of HOPE's directors were low or moderate income persons who were at the time actively seeking adequate housing in DuPage County.

The case was tried to the court. By agreement of the parties, the district court ordered the exchange of proposed stipulations of facts and evidence to facilitate the prompt presentation of evidence and to provide a substantially agreed upon factual record. Pursuant to that order, the parties stipulated to a considerable quantity of evidence. In addition to the stipulated materials, the district court conducted three-and-one-half days of hearings consisting of the testimony of certain County and Zoning Board members. Before passing judgment, the court attempted to obtain a negotiated settlement of the controversy and thus requested the Community Relations Service of the Department of Justice to mediate an agreement between the parties. These efforts failed, and in December of 1980, the court determined that a negotiated disposition was not possible.

On October 1, 1981, the district court concluded, in an exhaustive 101-page Findings of Fact, Conclusions of Law and Opinion, that the DuPage County defendants had in fact knowingly and intelligently engaged in housing practices which were intended to and effectively did exclude persons of low and moderate income and racial minorities from residing in the County. In support of its decision to provide equitable relief the district court also found that "DuPage County's housing policies and practices constitute a continuing threat of irreparable harm to plaintiffs and members of the plaintiff class who continue to seek low or moderate income housing in DuPage County." The district court did not, however, find a conspiracy between the developers and the County. Notwithstanding the plaintiffs' failure to prove the existence of a conspiracy, the court stated that the plaintiffs and the plaintiff class did establish "that they have been and continue to be injured by the actions of the defendants and that their inability to secure housing in DuPage County is fairly traceable to the County's actions." Based on this finding the court concluded that "they have standing to challenge those actions."

The trial judge in his determination that the County had pursued unconstitutional discriminatory housing practices examined a number of sources of information. Specifically, the court considered selected statements made by County officials, certain actions of the County Board, statements made during zoning board meetings, and certain statistical data. The most significant of these statements and facts relied upon by the court are listed below:

1. In 1971, Mr. James H. Clark, the then Collector and Treasurer of DuPage County, co-authored an article entitled "Suburbia High Taxes, The Dream Becomes a Nightmare," that appeared in the Chicago Tribune, in which the following statement was made:

"Another new issue in the suburbs is housing for low income people. Low income housing in DuPage County is like buying a case of cancer. It would result in too many people with too little tax revenue to pay for services--again, primarily schools--needed by these people."

Following publication of this article Clark had a substantial number of copies printed which he distributed to persons who complained about their taxes.

Mr. Clark was not a member of the DuPage County Board (nor was he named as a defendant in this action). He did, however, from time to time make recommendations to the DuPage County Zoning Board and on one particular occasion opposed a zoning variance for a project because the proposal included three-bedroom apartment units. Once the three-bedroom units were eliminated from the plan, Mr. Clark withdrew his opposition to the development and recommended approval. In his letter recommending approval of the project, as modified, Mr. Clark noted that the intended property for the development was, in his view, the last one of the remaining open spaces that could be used to generate a large tax asset without in addition creating an influx of a great number of children.

2. Gerald R. Weeks, elected to the County Board in 1963 and selected as its Chairman in 1970, was quoted in an article, appearing in the Chicago Tribune on March 31, 1971, concerning the NAACP's announcement that it planned an integrated city development in DuPage County that would include low and moderate income housing. According to that article:

"Board Chairman Gerald R. Weeks (R-Milton Twp.) said the NAACP, if it goes ahead with the plans, will help the board prove that the county does not practice exclusion. 'They'll find out they'll be treated just like everybody else,' he said.

Weeks said the NAACP housing will be welcomed if it conforms to the county's zoning laws. But, he said, the housing will not be welcomed 'if they want us to lift the laws so they can build fire traps and slums.' "

At his deposition Mr. Weeks attempted to clarify this statement by testifying that his reference to "the laws" meant the local building codes.

3. Fred Koebeman, a member of both the DuPage County Board and the Zoning Committee, when asked at a public meeting whether he favored the proposed NAACP...