Seniors Civil Liberties Ass'n, Inc. v. Kemp

• Decision Date: 13 July 1992
• Docket Number: No. 91-3525,91-3525
• Citation: 965 F.2d 1030
• Parties: SENIORS CIVIL LIBERTIES ASSOCIATION, INC., Plaintiff-Appellant, Stanley J. Motyl, Emilie Motyl, Helen Priel, Plaintiffs, Mary Riedel, Paul Riedel, Plaintiffs-Appellants, Margaret Shipley, Plaintiff, v. Jack KEMP, in his official Capacity as Secretary of the United States Department of HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1030

965 F.2d 1030

SENIORS CIVIL LIBERTIES ASSOCIATION, INC., Plaintiff-Appellant Stanley J. Motyl, Emilie Motyl, Helen Priel, Plaintiffs Mary Riedel, Paul Riedel, Plaintiffs-Appellants Margaret Shipley, Plaintiff, v. Jack KEMP, in his official Capacity as Secretary of the United States Department of HOUSING AND URBAN DEVELOPMENT, Defendant-Appellee.

No. 91-3525.

United States Court of Appeals Eleventh Circuit.

July 13, 1992.

Mark B. Schorr, Fort Lauderdale, Fla., for plaintiff-appellant.

Patricia Sharin Flagg, U.S. Dept. of Housing and Urban Development, Linda F. Thome, U.S. Dept. of Justice, Appellate Section Civ. Rights Div., Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON and COX, Circuit Judges, and MERHIGE ^*, Senior District Judge.

PER CURIAM:

Plaintiffs Seniors Civil Liberties Association, Incorporated (SCLA), Mary Riedel and Paul Riedel appeal the district court's grant of summary judgment in favor of United States Secretary of Housing and Urban Development Jack Kemp (who will, for convenience's sake, be referred to as HUD) on plaintiffs' constitutional challenge to the 1988 familial status antidiscrimination amendments to the Fair Housing Act. See 42 U.S.C. §§ 3601-3619. We affirm.

BACKGROUND

Mary and Paul Riedel are octogenarians living in the Clearwater Point Condominium complex (Clearwater Point) in Florida. Clearwater Point's Declaration of Condominium and Restated By-laws prohibit children under the age of sixteen from living with the Riedels or other Clearwater Point condominium owners.

SCLA is a not-for-profit corporation organized to promote and to protect the civil rights of its elderly members, particularly elders' rights to peaceful occupancy of their residences. The Riedels and the other original, individual plaintiffs, see infra note 2, are members of SCLA.

The Riedels and SCLA challenge recent changes to the Fair Housing Act. The 1988 amendments to the Fair Housing Act prohibit discrimination against families with children. 42 U.S.C. § 3604(a) ("[I]t shall be unlawful [t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of ... familial status...."). ¹ But the amendments exempt "housing for older persons" from the familial status antidiscrimination provisions if that housing meets criteria defined by statute and by regulations. See, e.g., id. § 3607(b)(2) & (3). HUD administers and enforces the Fair Housing Act, id. §§ 3608, 3610, 3612, but parties discriminated against may also enforce the Act's provisions. Id. §§ 3610, 3613.

SCLA, the Riedels and other plaintiffs ² brought an action against HUD for a declaratory Plaintiffs charged that the Fair Housing Act familial status antidiscrimination provisions violated the First Amendment by denying them freedom of association; violated the Fifth Amendment by depriving them of liberty and property interests; violated their constitutional right to privacy; violated the Tenth Amendment by encroaching on Florida's sovereignty; and violated their due process rights by being unconstitutionally vague.

judgment under 28 U.S.C. § 2201 ³ and for injunctive relief under 28 U.S.C. § 2202 ⁴. Plaintiffs, claiming that congressional amendments made in 1988 to the Fair Housing Act violated their constitutional rights, brought a declaratory judgment action; HUD had neither taken nor expressly stated that it planned to take enforcement action against plaintiffs.

On stipulated facts, plaintiffs and HUD filed motions for summary judgment. The district court first rejected HUD's arguments that plaintiffs lacked standing; in doing so, the court concluded that the individual plaintiffs were threatened with real and immediate injury, Seniors Civil Liberties Ass'n, Inc. v. Kemp, 761 F.Supp. 1528, 1540 (M.D.Fla.1991), and that a real and substantial dispute existed. Id. at 1538. The district court then rejected plaintiffs' constitutional challenge to the Act's 1988 amendments and granted summary judgment in favor of HUD. This appeal followed.

DISCUSSION

"[A]s a matter of the case-or-controversy requirement associated with [Article III of the Constitution]," Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 1215, 51 L.Ed.2d 376 (1977), and because of the "actual controversy" requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201, we questioned the standing of the Riedels and SCLA to prosecute this federal question. After studying the record and the parties' supplemental briefs, we conclude that plaintiffs have standing.

The Riedels' condominium complex currently violates the Fair Housing Act's prohibition against familial status discrimination. More important, the complex fails to meet the statutory exemption for "housing for older persons" because the complex has failed to publish and adhere to "policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older." 42 U.S.C. § 3607(b)(2)(C)(iii). Under these circumstances, the Riedels have standing because there exists "a realistic danger of sustaining a direct injury as a result of the [Act's] operation or enforcement." Babbitt v. United Farm Workers' Nat'l Union, 442 U.S. 289, 297, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979).

SCLA also has standing because, "in the absence of injury to itself, an association may have standing as the representative of its members." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975). By acting as the representative of the Riedels and other similarly situated older persons who are or might be injured, SCLA has standing. ⁵ See id. at 511-13, 95 S.Ct. at 2211-13. We now address plaintiffs' arguments on appeal.

Tenth Amendment Claim

SCLA and the Riedels argue that the familial status provisions of the Fair Housing Act regulate "lifestyles" and real property which have nothing to do with Plaintiffs' claim fails, first, because nothing in the Fair Housing Act regulates the states as states. See Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 537, 105 S.Ct. 1005, 1010, 83 L.Ed.2d 1016 (1985). But even if the states were regulated as states, the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, supports Congress' exercise of power.

                interstate commerce.   They conclude that, because no interstate commerce is involved, Congress has no justification to interfere with the state's control over state citizens' real-estate and contracting activities, and therefore the provisions violate the Tenth Amendment.   We disagree. 6
                

We find no merit in plaintiffs' argument that, because the real estate market involves private intrastate transactions, no interstate commerce is involved in residential sales and rentals. The Supreme Court has rejected the argument that "the Tenth Amendment shields the States from pre-emptive federal regulation of private activities affecting interstate commerce." Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264, 292, 101 S.Ct. 2352, 2368, 69 L.Ed.2d 1 (1981). "Congress' authority under the Commerce Clause extends to intrastate economic activities that affect interstate commerce." Garcia, 469 U.S. at 537, 105 S.Ct. at 1010.

If a rational basis exists for Congress' finding that an activity affects interstate commerce, we must defer to that finding and determine only whether the means selected by Congress to enforce the law are reasonably adapted to the end permitted by the Constitution. Preseault v. ICC, 494 U.S. 1, 18, 110 S.Ct. 914, 925, 108 L.Ed.2d 1 (1990). SCLA and the Riedels argue that there was no finding that interstate commerce was affected by discrimination against families with children through rental and, especially, sales of homes. We disagree.

First, Congress need make no express or formal finding that regulated activities regulate interstate commerce. Katzenbach v. McClung, 379 U.S. 294, 298, 85 S.Ct. 377, 381, 13 L.Ed.2d 290 (1964). Congress had ample evidence before it, and was adequately aware, that its exercise of power under the Fair Housing Act was supported by the Commerce Clause. See, e.g., Fair Housing Act of 1967: Hearings on S. 1358, S. 2114, and S. 2280 Before the Subcomm. on Housing and Urban Affairs of the Senate Comm. on Banking and Currency, 90th Cong., 1st Sess. 13-14, 23-24 (1967); 114 Cong.Rec. 2536-37 (1967) (including Attorney General's memorandum that Fair Housing Act was supported by Commerce Clause because of broad interstate effect of housing market).

Second, to the extent plaintiffs argue that Congress attempted only to regulate the rental housing market, they are wrong because the legislative history of the Act and the amendments to the Act show that Congress sought to ban discrimination in all housing transactions, including sales to families with children. See, e.g., H.Rep. No. 711, 100th Cong., 2d Sess. 19 (1988), U.S.Code Cong. & Admin.News 1988, p. 2175, 2180. (describing national familial status discrimination and noting that one reason for passing 1988 amendments was because only sixteen states had law prohibiting familial status discrimination, and of these sixteen, nine states did not cover sales of housing). Also, and more important, plaintiffs' argument that Congress had no intent to regulate the sales market is undermined by the plain language of the statute that regulates both rentals and sales. See 42 U.S.C. § 3604 ("to refuse to sell or rent").

Because Congress had a rational basis for amending the Fair Housing Act--namely, the nationwide problem caused by familial status discrimination in the housing market--and because the housing market affects interstate commerce, plaintiffs' Tenth Amendment claim fails.

Fifth Amendment Claim--Deprivation of Contractual and Property Rights

SCLA and the Riedels next argue that, because...