Mahaley v. Cuyahoga Metropolitan Housing Authority

Decision Date09 July 1974
Docket NumberNo. 73-1407,73-1407
Citation500 F.2d 1087
PartiesArtie MAHALEY et al., Plaintiffs-Appellees, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY et al., Defendants-Appellees, and Cityof Euclid et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Loyal V. Buescher, Charles T. Riehl, Cleveland, Ohio, for Municipal defendants-appellants; Walter, Haverfield, Buescher & Chockley, Cleveland, Ohio, on brief.

Andrew Boyko, Sol., City of Parma, and Robert R. Soltis, Sp. Counsel, Parma, Ohio, for defendants-appellants.

Schneider, Smeltz, Huston & Bissell by James I. Huston, Thomas J. LaFond, Cleveland, Ohio, on brief, for plaintiffs-appellees.

Walter C. Kelley, Fred J. Livingstone Michael L. Gordon Kelley, McCann & Livingstone, Cleveland, Ohio, on brief, for Cuyahoga Metropolitan Housing Authority.

Martin E. Sloane, Gen. Counsel, National Committee Against Discrimination In Housing, Inc., Washington, D.C., on brief, for Amicus Curiae.

Before WEICK, EDWARDS and PECK, Circuit Judges.

WEICK, Circuit Judge.

This appeal involves a controversy over low-rent housing under the United States Housing Act of 1937, as amended, 42 U.S.C. 1401 et seq.

Plaintiffs are three Cleveland residents, who claim to be eligible for public housing, and an association interested in public housing, named the PATH. They filed an action in the District Court on March 15, 1971 against Cuyahoga Metropolitan Housing Authority (CMHA), a public housing agency, its Board and Executive Director, the municipalities of Euclid, Garfield Heights, Parma, Solon and Westlake (all suburbs of Cleveland) and their respective Mayors and councilmen, and the Department of Housing and Urban Development of the United States (HUD) and its Secretary, George Romney. Later the Court ordered that the case proceed as a class action.

The class alleged to be represented by the individual plaintiffs was 'low income residents of the Greater Cleveland Ohio area, who by virtue of their poverty or race, or both, are unable to secure decent, safe and sanitary housing at rents which they can afford without the assistance of defendant CMHA.' None of the three named individual plaintiffs resided in any of the five defendant municipalities. One of the individual plaintiffs, Mahaley, resides in a CMHA project in Cleveland.

Under the Act, before low-rent housing may be constructed in a given municipality there must be a local determination of need and 'the governing body of the locality involved . . . (must have) entered into an agreement with the public housing agency providing for the local cooperation required by the Authority pursuant to this chapter . . ..' 1

In the first count of the complaint the plaintiffs attacked the constitutionality of the consent and cooperation agreement requirement of the Act.

Count two of the complaint alleged that the five municipalities had used the consent and cooperation agreement requirements of the Act as a means to exclude the plaintiffs and the classes they represent from living in these municipalities, in violation of their civil rights and of the Fourteenth Amendment to the Constitution of the United States. 2

Plaintiffs prayed for an order directing CMHA to construct low-rent housing units in the five suburbs despite the consent requirement by the suburbs' governing bodies as provided in subsection (7)(a)(i) of the Act, and the cooperation agreement requirement of subsection (7)(b)(i) of the Act.

A three-Judge Court (Circuit Judge Celebrezze and District Judges Battisti and Lambros) was convened to consider the constitutional aspects of the case. There was a trial before the three-Judge Court and the case was submitted to it on the evidence which included stipulations, exhibits and depositions.

The three-Judge Court, in a signed Memorandum Opinion and Order stamped filed by the Clerk of the District Court on February 22, 1973 at 11:06 o'clock, a.m., found and determined that the cooperation agreement requirement of the Act (subsection (7)(b)(i)) was 'constitutional both on its face and as applied . . ..' The order then dissolved the three-Judge panel and referred the case to a single Judge (Chief Judge Battisti) to determine 'the question of whether the defendants' conduct violated the provision of 42 U.S.C. Sec. 1983 . . ..' District Judge Lambros dissented. No appeal to the Supreme Court was taken from that order and it has become final and is res judicata of the issues decided.

On the same day, about an hour later, at 12:14 o'clock p.m., there was filed with the Clerk of the District Court a 25-page Memorandum Opinion and Order of the single Judge, in which he completely disposed of the issue referred to him by the three-Judge panel without further argument or hearing. 355 F.Supp. 1257 (N.D.Ohio 1973).

The single Judge recognized that there had been remanded to him only the one question, whether plaintiffs' rights under Section 1983 had been violated. He stated:

The question remaining before the court is whether the defendants have used the consent requirement as a tool to perpetuate segregation in violation of 42 U.S.C. 1983.

(Id. at 1259)

In his Memorandum Opinion and Order, however, the single Judge found that the defendant suburbs had committed a prima facie violation of the Fourteenth Amendment to the Constitution by their failure to enter into a cooperation agreement with CMHA to build low-rent, federally-assisted housing in their communities.

On the issue of constitutionality, which had already been decided in favor of the suburbs by the three-Judge panel, the Judge stated:

Where there is prima facie evidence of discrimination, the burden is shifted to the defendant suburbs to come forward with a supervening necessity or compelling governmental interest to avoid a finding of unconstitutionality. (Id. at 1266).

The Judge then inferred discrimination on the part of the suburbs because of their failure and refusal to enter into cooperation agreements. He further stated:

The evidence amply demonstrates that the suburban defendants' failures and refusals to contract, negotiate with CMHA, or enter into Cooperation Agreements, have the clear effect of discriminating against Negroes by excluding them from residing in these suburban municipalities and perpetuating existing racial concentration and segregation within the individual suburbs and throughout the metropolitan area. In the face of this evidence, the suburban defendants came forward with no logical rationale, compelling or otherwise, to explain their conduct. The record indicates that the actions of the defendant suburbs under color of law, discriminate against Negroes and other low income persons. Such actions violate the plaintiffs' rights to equal protection of the law under the Fourteenth Amendment to the United States Constitution and are in violation of their rights under the various Civil Rights Acts. See 42 U.S.C. Sections 1981, 1982, 1983, 2000d and 3601 et seq. (Id. at 1266-1267).

The Judge further said:

The foregoing is contrary to the Thirteenth Amendment and the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution, the Civil Rights Act of 1964 and 1968, Title 42 U.S.C. Sections 1981, 1982, 1983, 2000d and 3601 et seq., the United States Housing Act of 1937 as amended, and regulations of the Department of Housing and Urban Development. (Id. at 1268)

The single Judge further stated:

State officials are refusing to sign a federally required document with the resulting effect of discrimination. (Id. at 1268)

In his judgment order the single Judge granted a rather unique form of relief. He treated the case before him like a school desegregation case and ordered CMHA 'to prepare a plan setting forth the number of scattered site units it intends to place in each of the defendant surburbs.' The plan was required to include not only the residents of the suburbs but also 'residents of the City of Cleveland who wish to move into that community.' (Id. at 1269).

The order required the municipalities to object to the plan within ninety days and to give reasons if they have any why then cannot absorb the number of houses which CMHA desires to build there. The order further provided:

Unless the reasons . . . are constitutionally permissible and meet the compelling interest test, there will be no alternative but to conclude that the suburb's failure to sign a Cooperation Agreement is for a constitutionally impermissible reason, to wit: racial discrimination and appropriate judicial action will be undertaken. (Id. at 1269) 3

The five municipalities appealed. We reverse.

The rulings of the single Judge and his order conflict with the decision of the three-Judge panel, and also conflict with the decision of the Supreme Court in James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971), where the court stated:

By the Housing Act of 1937 the Federal Government has offered aid to state and local governments for the creation of low-rent public housing. However, the federal legislation does not purport to require that local governments accept this or to outlaw local referendums on whether the aid should be accepted. (Id. at 140, 91 S.Ct. at 1333.)

The Court recognized that the people of a community have the right to decide whether they want low-rent housing, stating:

The people of California have also decided by their own vote to require referendum approval of low-rent public housing projects. This procedure ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues. It gives them a voice in decisions that will affect the future development of their own community. This procedure for democratic decisionmaking does not violate the constitutional command that no State shall deny to any person 'the equal...

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