Hunter v. Erickson

Decision Date20 January 1969
Docket NumberNo. 63,63
Citation393 U.S. 385,89 S.Ct. 557,21 L.Ed.2d 616
PartiesNellie HUNTER, Appellant, v. Edward O. ERICKSON, Mayor of City of Akron, et al
CourtU.S. Supreme Court

Robert L. Carter, New York City, for appellant.

Louis F. Claiborne, Washington, D.C., for the United States, as amicus curiae, by special leave of Court.

Alvin C. Vinopal, Akron, Ohio, for appellees.

Mr. Justice WHITE delivered the opinion of the Court.

The question in this case is whether the City of Akron, Ohio, has denied a Negro citizen, Nellie Hunter, the equal protection of its laws by amending the city charter to prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.

The Akron City Council in 1964 enacted a fair housing ordinance premised on a recognition of the social and economic losses to society which flow from substandard, ghetto housing and its tendency to breed discrimination and segregation contrary to the policy of the city to 'assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.' Akron Ordinance No. 873 1964 § 1. A Commission on Equal Opportunity in Housing was established by the ordinance in the office of the Mayor to enforce the antidiscrimination sections of the ordinance through conciliation or persuasion if possible, but, if not, then through 'such order as the facts warrant,' based upon a hearing at which witnesses may be subpoenaed, and entitled to enforcement in the courts. Akron Ordinance No. 873—1964, as amended by Akron Ordinance No. 926—1964.

Seeking to invoke this machinery which had been established by the city for her benefit, Nellie Hunter addressed a complaint to the Commission asserting that a real estate agent had come to show her a list of houses for sale, but that on meeting Mrs. Hunter the agent 'stated that she could not show me any of the houses on the list she had prepared for me because all of the owners had specified they did not wish their houses shown to negroes.' Mrs. Hunter's affidavit met with the reply that the fair housing ordinance was unavailable to her because the city charter had been amended to provide:

'Any ordinance enacted by the Council of The City of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein.' Akron City Charter § 137.

The proposal for the charter amendment had been placed on the ballot at a general election upon petition of more than 10% of Akron's voters, and the amendment had been duly passed by a majority.

Appellant then brought an action in the Ohio courts on behalf of the municipality, herself, and all others similarly situated, to obtain a writ of mandamus requiring the Mayor to convene the Commission and to require the Commission and the Director of Law to enforce the fair housing ordinance and process her complaint. The trial court initially held the enforcement provisions of the fair housing ordinance invalid under state law, but the Supreme Court of Ohio reversed, State ex rel. Hunter v. Erickson, 6 Ohio St.2d 130, 216 N.E.2d 371 (1966). On remand, the trial court held that the fair housing ordinance was rendered ineffective by the charter amendment, and the Supreme Court of Ohio affirmed, holding that the charter amendment was not repugnant to the Equal Protection Clause of the Constitution.

Akron conten § that this case has been rendered moot by the passage of the Civil Rights Act of 1968, Pub.L. 90—284, 82 Stat. 73, the decision of this Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), and the passage of an Ohio Act effective October 30, 1965, Ohio Rev.Code Ann., Tit. 41, c. 4112. It is true that each of these events is related to open housing, but none of the legislation involved was intended to pre-empt local housing ordinances or provide rights and remedies which are effective substitutes for the Akron law.

The 1968 Civil Rights Act specifically preserves and defers to local fair housing laws,1 and the 1866 Civil Rights Act2 considered in Jones should be read together with the later statute on the same subject, United States v. Stewart, 311 U.S. 60, 64—65, 61 S.Ct. 102, 85 L.Ed. 40 (1940); Talbot v. Seeman, 1 Cranch 1, 34 35, 2 L.Ed. 15 (1801), so as not to pre-empt the local legislation which the far more detailed Act of 1968 so explicitly preserves. If the Ohio statute mooted the case, surely the Ohio Supreme Court would have so held when the validity of the Akron ordinance was twice before it after the Ohio statute was passed. Moreover, the sections of the Ohio law which are crucial here apply to 'commercial housing,' and on any reading we can imagine do not apply to Mrs. Hunter's case,3 though the Akron ordinance does. Finally, the case cannot be considered moot since the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Unlike state or federal programs, the Akron ordinance brings local people together for conciliation and persuasion by and before a local tribunal. It is precisely this sort of very localized solution to which Congress meant to defer. We therefore reject the contention that this case is moot.

Akron argues that this case is unlike Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) in that here the city charter declares no right to discriminate in housing, authorizes and encourages no housing discrimination, and places no ban on the enactment of fair housing ordinances. But we need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.

By adding § 137 to its Charter the City of Akron, which unquestionably wields state power,4 not only sus- pended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect.5 Section 137 thus drew a distinction between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule: the ordinance would become effective 30 days after passage by the City Council, or immediately if passed as an emergency measure, and would be subject to referendum only if 10% of the electors so requested by filing a proper and timely petition.6 Passage by the Council sufficed unless the electors themselves invoked the general referendum provisions of the city charter. But for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to § 137.

Only laws to end housing discrimination based on 'race, color, religion, national origin or ancestry' must run § 137's gantlet. It is true that the section draws no distinctions among racial and religious groups. Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end. But § 137 nevertheless disadvantages those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor. The automatic referendum system does not reach housing discrimination on sexual or political grounds, or against those with children or dogs, nor does it affect tenants seeking more heat or better maintenance from landlords, nor those seeking rent control, urban renewal, public housing, or new building codes.

Moreover, although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates' race on the ballot, Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), § 137 places special burden on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others. Cf. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). The preamble to the open housing ordinance which was suspended by § 137 recited that the population of Akron consists of 'people of different race, color, religion, ancestry or national origin, many of whom live in circumscribed and segregated areas, under substandard unhealthful, unsafe, unsanitary and overcrowded cond tions, because of discrimination in the sale, lease, rental and financing of housing.' Such was the situation in Akron. It is against this background that the referendum required by § 137...

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