Michigan Protection and Advocacy Service, Inc. v. Babin, 92-2073

• Decision Date: 13 April 1994
• Docket Number: No. 92-2073,92-2073
• Citation: 18 F.3d 337
• Parties: , 5 NDLR P 42 MICHIGAN PROTECTION AND ADVOCACY SERVICE, INCORPORATED; William Carleton, by Tabako Carleton, guardian; Christopher McClain, by Tess Dubb, guardian; Beverly Brooky; Rose Jeanette; John Spencer, by Oakdale Guardianship, Incorporated, guardian; Louise Crowell; Dixie Edmonds; Sandra Foster, by Macomb Oakland Guardianship, Incorporated, guardian; Cynthia Wendt, by Shirley Daroci, guardian; Martin Briski, by Lydia Briski, guardian; Rochelle Schafer, by Linda Binder Deutch, guardian; Warren Ufford, by David Ufford, guardian, Plaintiffs-Appellants, Fania Antonias; Virginia Mallan, Plaintiffs, v. Peggy BABIN; Florence Hammonds; Nosh Ivanovic; Katrina Ivanovic; Scott Babin; John R. Kersten; Town & Country-Sterling Heights, Incorporated, doing business as Century 21 Town and Country Realtor; Thomas G. Fortin; Paul V. Hebert, Defendants-Appellees, Michelle Rhodes; Alan Rhodes; Samuel Thompson; Joseph Maguire; Shelby Township, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 337

18 F.3d 337

4 A.D.D. 1060, 5 NDLR P 42

MICHIGAN PROTECTION AND ADVOCACY SERVICE, INCORPORATED;

William Carleton, by Tabako Carleton, guardian; Christopher

McClain, by Tess Dubb, guardian; Beverly Brooky; Rose

Jeanette; John Spencer, by Oakdale Guardianship,

Incorporated, guardian; Louise Crowell; Dixie Edmonds;

Sandra Foster, by Macomb Oakland Guardianship, Incorporated,

guardian; Cynthia Wendt, by Shirley Daroci, guardian;

Martin Briski, by Lydia Briski, guardian; Rochelle Schafer,

by Linda Binder Deutch, guardian; Warren Ufford, by David

Ufford, guardian, Plaintiffs-Appellants, Fania Antonias; Virginia Mallan, Plaintiffs, v. Peggy BABIN; Florence Hammonds; Nosh Ivanovic; Katrina

Ivanovic; Scott Babin; John R. Kersten; Town &

Country-Sterling Heights, Incorporated, doing business as

Century 21 Town and Country Realtor; Thomas G. Fortin;

Paul V. Hebert, Defendants-Appellees,

Michelle Rhodes; Alan Rhodes; Samuel Thompson; Joseph

Maguire; Shelby Township, Defendants.

No. 92-2073.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 14, 1993.

Decided March 2, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied April 13, 1994.

Stewart R. Hakola (argued and briefed), Michigan Protection & Advocacy Service, Marquette, MI, Calvin A. Luker, Livonia, MI, for plaintiffs-appellants.

Kevin F. O'Shea (argued and briefed), Butzel, Long, Gust, Klein & Van Zile, Detroit, MI, Samuel M. Thompson, Rochester, MI, for Peggy Babin.

Thomas W. Cranmer (briefed), Miro, Miro & Weiner, Donald K.S. Petersen (argued), Bloomfield Hills, MI, for Florence Hammonds.

Kevin A. McNulty, Troy, MI, for Nosh Ivanovic and Katrina Ivanovic.

Samuel M. Thompson, Rochester, MI, for Scott Babin.

James V. Carnago (argued and briefed), Laura M. Janeczko-Beam, Troy, MI, for John R. Kersten.

James V. Carnago, Laura M. Janeczko-Beam, James S. Vecchio, Troy, MI, for Town & Country-Sterling Heights, Inc.

Michael K. Lee, Mark S. Koppelman (briefed), Southfield, MI, for Thomas G. Fortin.

Mark S. Koppelman, Southfield, MI, for Paul V. Hebert.

David K. Flynn, Leslie A. Simon (briefed), U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, DC, for U.S. amicus curiae.

Before: BOGGS and SUHRHEINRICH, Circuit Judges, and BROWN, Senior Circuit Judge.

BOGGS, Circuit Judge.

The plaintiffs filed several civil rights claims against the defendants, alleging that the defendants had denied and/or interfered with the plaintiffs' right to equal access to housing. The plaintiffs claim that their right to housing was violated when a house owner, who was negotiating with a state agency to rent the house as a group home for mentally disabled adults, sold the house at a profit to neighbors of the property. The plaintiffs allege that the seller's motivation for selling and the neighbors' motivation for buying the house were discriminatory. The plaintiffs brought suit against the seller, a real estate agency, and the group of neighbors who helped raise the money to purchase the property.

On a motion for summary judgment, the district court ruled against the plaintiffs on three separate grounds. The court found that the defendants (1) did not discriminate or otherwise make unavailable a dwelling to the plaintiffs; (2) did not discriminate against the plaintiffs in the course of a real estate-related transaction; and (3) did not interfere with the exercise and enjoyment of plaintiffs' right to fair housing. 799 F.Supp. 695 (E.D.Mich.1992). The district court also dismissed the plaintiffs' 42 U.S.C. Secs. 1985 and 1986 claims, their pendent state claims, and denied their cross-motion for summary judgment. Ibid. We hold that a proper interpretation of the text of the Fair Housing Amendments Act of 1988 does not reach the actions of the defendants in this case and we therefore affirm the district court's grant of summary judgment for the defendants.

I

In May 1988, the defendant Florence Hammonds was working as a real estate agent for Century 21 Town and Country Realty ("Century 21"). At that time, a couple listed their house ("24 Mile Road property" or "the house") with Century 21 and Hammonds marketed the property on their behalf. After eight months on the market, however, Hammonds had not sold the house.

In November 1988, while acting as the broker for the house, Hammonds contacted the Macomb-Oakland Regional Center ("MORC"), a state agency. Hammonds asked MORC if it would be interested in leasing the property as a group home for mentally disabled adults if she purchased it. MORC indicated that it was interested in leasing the property.

In early February 1989, Hammonds purchased the house for $95,000. She paid a broker's commission to Century 21 as the buyer, but recouped part of the commission as the real estate agent. Hammonds also took out a home equity loan and a mortgage to finance the purchase.

According to Hammonds, in March 1989 MORC indicated that it would execute a written lease and begin paying rent to Hammonds by the middle of May 1989. The leasing arrangements, however, did not progress as quickly as planned. In April 1989, MORC informed her that the lease could not be executed until July 15, 1989, because MORC was still waiting for various state agencies to approve the arrangement.

Meanwhile, on April 26, MORC officials sent out a letter to residents in the vicinity of the 24 Mile Road property to inform them that the house would be used as a group home. On April 28, 1989, Peggy Babin, a resident of the area, called Hammonds to arrange a meeting with her. On April 29, 1989, Babin and five other neighbors met with Hammonds at Hammonds's house to discuss the lease. At the meeting, Hammonds attempted to allay the neighbors' fears about having a group home in their neighborhood, but she also insisted on going through with her lease with MORC.

The neighbors ¹ then began a campaign to prevent the property from becoming a group home. Peggy Babin organized a petition drive to stop the group home, contacted several newspapers about the drive, and prepared a "mailing" about group homes. This mailing included 1) a newspaper article about a resident of a group home who had raped a nine-year old girl; 2) a list of addresses of people to write to express concern about the group home; 3) MORC's April 26 letter with a note indicating that MORC was talking about a group home such as the one discussed in the enclosed newspaper article; 4) a sheet entitled "Group Homes: Things You Should Know" that stated that the neighborhood would no longer be safe and property values would plummet if a group home was situated in the neighborhood; and 5) form letters to send to Century 21 and MORC to express concern about the group home.

After the neighbors began their petition drive, Hammonds initiated a conversation with John Kersten, the owner and sole shareholder of Century 21. Hammonds mentioned that she was concerned about the reaction of the neighbors to the proposed use of the 24 Mile Road property. Kersten indicated that Hammonds would have to handle the situation herself.

On the morning of May 12, Hammonds met with MORC representatives about hastening the leasing arrangement. According to Hammonds, the representatives promised to inquire about the delay in the approval of the lease and to call her that same day with an answer. They did not call her. Also, on May 12 a town meeting was held and approximately one hundred people showed up to express their concerns about the group home. Hammonds did not attend the meeting.

On May 13, Nosh Ivanovic offered Hammonds $100,000 for the house. On May 15, Hammonds made a counteroffer of $104,000. Ivanovic was unable to raise the additional cash, so Scott Babin provided the funds. Scott Babin, with the help of Paul Hebert, then solicited funds from the neighbors to offset his donation to Ivanovic. Thomas Fortin donated $500.

The closing for the 24 Mile Road property took place on May 19. No one from Century 21 was at the closing and Hammonds did not pay a commission to the agency. Hammonds, however, used closing documents bearing the Century 21 logo, and the forms were pre-printed with Kersten's signature as the broker for the sale.

Based on these facts, the plaintiffs filed this suit against Hammonds, Kersten, Century 21, and the neighbors. The plaintiffs allege that each of the defendants violated 42 U.S.C. Sec. 3604(f)(1), which makes it illegal for a person to discriminate in the sale or rental, or to otherwise make unavailable or deny a dwelling to a person because of a disability. The plaintiffs also contend that Hammonds, Kersten, and Century 21 discriminated against the plaintiffs in a real estate-related transaction, in violation of 42 U.S.C. Sec. 3605. Finally, the plaintiffs claim that all of the defendants interfered with the plaintiffs in the exercise of their rights to housing, in violation of 42 U.S.C. Sec. 3617.

II

This court reviews de novo the district court's grant of the defendants' motion for summary judgment. Baggs v. Eagle-Picher Indus., Inc., 957 F.2d 268, 271 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 466, 121 L.Ed.2d 374 (1992). This court will affirm the district court's order only if we determine that the pleadings, affidavits, and other submissions show "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view all evidence before us in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The moving party need not support its motion with evidence disproving the non-moving party's claim, but need only show that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The plaintiff must present more than a scintilla of evidence in support...