United States v. Mitchell, Civ. A. No. 13467.

• Decision Date: 27 January 1971
• Docket Number: Civ. A. No. 13467.
• Parties: UNITED STATES of America v. Raymond C. MITCHELL, d/b/a Ray Mitchell Realty Company.
• Court: U.S. District Court — Northern District of Georgia

327 F. Supp. 476

UNITED STATES of America v. Raymond C. MITCHELL, d/b/a Ray Mitchell Realty Company.

Civ. A. No. 13467.

United States District Court, N. D. Georgia, Atlanta Division.

January 27, 1971.

John N. Mitchell, Atty. Gen., Jerris Leonard, Asst. Atty. Gen., Frank E. Schwelb and Thomas M. Keeling, Attys., U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Hansell, Post, Brandon & Dorsey, Atlanta, Ga., for defendant.

ORDER

EDENFIELD, District Judge.

This is a "blockbusting" case brought by the Attorney General pursuant to 42 U.S.C.A. § 3613 alleging Defendant Ray Mitchell Realty Company has violated the provisions of 42 U.S.C.A. § 3604(e) and seeking an injunction to prohibit further violations. Defendants have moved for summary judgment on the following grounds:

(1) The acts alleged by plaintiff are not prohibited representations within the meaning of 42 U.S.C.A. § 3604(e);

(2) The acts alleged do not indicate a sufficient basis for the initiation of this suit by the Attorney General under either of the alternatives of 42 U.S.C.A. § 3613;

(3) The representations allegedly made by defendants are exempt from the operation of § 3604(e) by § 3603(b) (1);

(4) The defendants did not have the necessary intent to violate the Act;

(5) The Attorney General is barred from maintaining this action by the doctrine of laches; and

(6) Injunctive relief in this case would constitute an unconstitutional prior restraint on defendants' right to speech.

Defendants' primary contention on their motion for summary judgment is based on both the statutory limits on the Attorney General's right to initiate an action pursuant to 42 U.S.C.A. § 3613 and on the definition of prohibited acts in 42 U.S.C.A. § 3604(e). First, defendants contend that most of the representations alleged by plaintiff do not constitute prohibited representations under § 3604(e) which provides:

"* * * It shall be unlawful—

"(e) For profit, to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, or national origin."

Secondly, defendants argue that even if the alleged acts were violations of the Act, the Attorney General may not proceed under the so-called "first alternative" of 42 U.S.C.A. § 3613¹ because the acts are not sufficient in number to constitute the "pattern or practice" of resistance that is a requisite to the Attorney General bringing an action under the "first alternative." Defendants contend the Attorney General may not proceed under the so-called "second alternative" of 42 U.S.C.A. § 3613² because the plaintiff has not alleged acts which deny to groups of persons rights guaranteed by the Act. Because material issues of fact remain concerning all of these issues, summary judgment is denied.

Concerning defendants' first contention that the alleged statements of their salesmen do not constitute violations of the Act, the court must first set out the statements attributed to defendants' salesmen. In response to defendants' first interrogatories, plaintiff has answered that the following allegedly prohibited representations were made by defendants' agents:

"Mrs. Jack Walker was approached by Mrs. Jean Rick, agent of the defendant company, in February 1969. Rick told Mrs. Walker in essence that Negroes were coming into the neighborhood and, if the Walkers waited to sell their home, they would not get what the house was worth. Mrs. Rick also said that her boss, Ray Mitchell, had instructed his sales personnel to `work an area' after the first Negro family moved into the neighborhood.

"Mrs. Rick returned to the Walker home in March 1969 with what she alleged to be a contract for the sale of a home on Ingledale Drive located immediately behind the Walker home. Mrs. Rick told the Walkers that the house on Ingledale had been sold to an unmarried Negro couple with six children who would be unsupervised because both of the adults worked nights. The Walkers responded by listing their home with Ray Mitchell on that same day.

"Mrs. Marian Burzywski was approached by Mrs. Jean Rick in March 1969 during Mrs. Rick's door-to-door canvassing of the neighborhood. Mrs. Rick told her in essence that Negroes were moving into the neighborhood and if she wanted to get a good price for their home they should sell now. Mrs. Rick explained to Mrs. Burzywski about having to sell her own home in East Point, Georgia, at a loss because Negroes moved into that area.

"Mrs. Raymond E. Turner was attempting to sell her own home when she was approached by Mrs. Elva Cook, agent for Ray Mitchell, in April 1969 and persuaded to list with Ray Mitchell because, according to Mrs. Cook, Negroes did not like to deal directly with the seller.

"Mrs. Norman E. Boggs, in July 1969, was approached by a man who identified himself as an agent for Ray Mitchell Realty. He advised her to the effect that Negroes were moving into the area and it would be better if they did not wait to sell their home.

"Mrs. Leon P. McCrimmin was approached early in 1969 by Dewey Wofford, agent for the subject company, who solicited her listing. Mrs. McCrimmin told him that she would not be the first in the neighborhood to put her house up for sale. Wofford returned about a week later for the same purpose, telling Mrs. McCrimmin that her next-door neighbors had put their house up for sale. Mrs. McCrimmin, however, did not list, and later discovered that her neighbors had not listed their house as reported by Wofford. In April 1969 Wofford returned with a Negro couple and asked Mrs. McCrimmin if she had listed her house. When she replied negatively, Wofford asked if he could show the Negro couple her house anyway; she refused to allow him to do so.

"Mrs. Ruth N. Hutcheson was approached by Dewey Wofford in June 1969 who solicited her listing. He told her that all of the other homes on the street were for sale even though they did not display for sale signs. Mrs. Hutcheson did not list."

Defendants argue that the representations above should be scrutinized pursuant to the definition of "blockbusting" in a pamphlet published by the United States Department of Housing and Urban Development entitled "Fair Housing: What it Means to You." This pamphlet, designed as a guide for laymen, defines blockbusting as "persuading someone to sell housing by telling him minority groups are moving into the area." Defendants argue that upon applying the test set forth in the pamphlet it becomes apparent that some of the salesmen's statements are not prohibited representations.

Our first step is to reject the publication of the Department of Housing and Urban Development as setting forth an authoritative interpretation of 42 U.S. C.A. § 3604(e). The legislature enacts laws; and the courts, not the executive agencies, must ultimately interpret these laws. The pamphlet referred to by defendants was published as a guide for laymen. The writers of the pamphlet were concerned with publishing, in clear, concise terms the basic thrust of the Act. By necessity, their task called for some oversimplification; ours does not.

In delineating what Congress means by "representations" in § 3604(e) the court must keep in mind the basic purpose of the sections: to prevent persons from preying on the fears of property owners and inducing panic selling resulting in monetary loss to the sellers and instability in the neighborhoods involved. In furthering this purpose, Congress surely did not intend that in order to violate the Act a salesman must say, "For my own profit, I would like to induce you to sell your house by telling you that Negroes are moving into your neighborhood." On the other hand Congress did not intend for a man to be deemed a blockbuster merely by driving through a transitional neighborhood with a sign "XYZ Realty Co." lettered on his car door. To avoid both extremes, it would seem necessary to ask: How would a reasonable man interpret the acts and words of the salesman under the circumstances in which these acts were done and these words were said. This standard would seem to accommodate the realities of real estate selling and avoid an easy circumvention of the statute by the narrow interpretation requested by defendants. However, the "reasonable man" standard protects the salesman from the paranoid who interprets a real estate salesman's "good morning" as part of a sinister scheme to undermine the value of his house. A § 3604(e) "representation", then, would be any acts or words that would be likely to convey to a reasonable man, under the circumstances, the idea that members of a particular race, color, religion or national origin are or may be entering his neighborhood. Of course to fall within § 3604(e), the representation must also be made for profit and it must be made to induce the sale of the person's property.

Viewed in the manner discussed above, some of the statements allegedly made were clearly prohibited representations. For example, Mrs. Rick's alleged statements to Mrs. Jack Walker and Mrs. Marian Burzywski are outright violations of the Act. However, issues of fact remain as to whether these statements were made. The affidavits of Mrs. Walker and Mrs. Burzywski support the government's contentions that the statements were made. The affidavit of Mrs. Rick, offered by Defendant Mitchell, directly contradicts the substantive portions of the Walker and Burzywski affidavits. Concerning the representation made to Mrs. Boggs, there is an issue of fact as to whether the salesman actually worked for defendant; there is little question that the representation does constitute a violation of the Act. Some of the other actions and statements may not be a violation of § 3604(e) when taken out of context. However, as indicated above, the statements should be viewed in light of the circumstances in which they were made. Concerning these circumstances, there...