Mahaley v. Cuyahoga Metropolitan Housing Authority , 355 F. Supp. 1245 ( 1973 )

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge:

These are consolidated suits instituted pursuant to 42 U.S.C. § 1981 and § 1983 and arising under federal law invoking this court’s jurisdiction pursuant to 28 U.S.C. §§ 1343(3), 1343(4) and 1331(a). They are brought in behalf of all ten-¹ ants and applicants for low-income housing, the vast majority of whom are Negro, and the Path Association, a non-, profit corporation incorporated under the laws of the State of Ohio whose principal purpose is to stimulate the improvement of housing and related neighborhood conditions in the Greater Cleveland Metropolitan Area. The defendants are the Cuyahoga Metropolitan Housing Authority, which is a public corporation created under Section 3735.-27 et seq. of the Ohio Revised Code and is authorized, inter alia, to engage in the development and administration of low rent housing in all areas of Cuyahoga County, except Chagrin Falls Township. Defendant Fitzgerald is the Director of defendant Cuyahoga Metropolitan Housing Authority. The members of the Board of CMHA are parties defendant in their official capacities. The defendant suburban cities in C 71-251, Euclid, Garfield Heights, Parma, Solon and Westlake (suburbs) are all municipal corporations within Cuyahoga County, established under the laws of the State of Ohio; all but Parma are chartered. The respective Mayors and Councilmen of the defendant suburbs are also parties defendant. The defendants in C 72-67 are the City of Cleveland, its Mayor, and its Councilmen. The defendant Department of Housing and Urban Development of the United States (HUD) is created under the laws of the United States and administers the federal low rent public housing laws. Defendant Romney is the Secretary of HUD and its chief executive official.

The plaintiffs are seeking a declaration that 42 U.S.C. § 1415(7) (b) (i) is unconstitutional on its face or as it has been applied. The named plaintiffs in C 71-251 are two Negroes and one White citizen of the United States who require low rent public housing for their health, safety and welfare. They represent a class of low-income residents of the Greater Cleveland Area, who by virtue of their poverty, or race, or both, are unable to secure decent, safe and sanitary housing at rents they can afford without the assistance of CMHA. The plaintiffs contend that the local consent requirement of 42 U.S.C. § 1415(7) (b) (i) permits and encourages the governing bodies of local municipalities to control the acceptance of low rent housing and has directly led to the containment of low rent housing into areas, almost entirely within the City of Cleveland, which are predominately Negro, in violation of the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. In Count Two of C 71-251 the plaintiffs contend that the defendant suburban cities have declined to enter into Cooperation Agreements with CMHA in an attempt to perpetuate discrimination in housing patterns, which would concentrate Negroes largely within the City of Cleveland.

The named plaintiffs in C 72-67 are Negro tenants or applicants for CMHA public housing. Counts One and Two are substantially identical to their counter parts in C 71-251. Count Three of this complaint alleges that the number of units agreed to in the Cooperation Agreement of 1971 between the City of Cleveland and CMHA is inadequate to meet the needs for low income housing in Cleveland. Therefore, the plaintiffs pray that judgment be entered declaring that the failure of defendant councilmen to execute a “meaningful” Cooperation Agreement is in conflict with the plaintiffs’ rights secured by the Fourteenth and Thirteenth Amendments, and that this court issue an order directing that CMHA and the City of Cleveland enter into a new Cooperation Agreement which more properly reflects low income housing needs.

42 U.S.C. § 1415(7)(b) provides:

“The Authority shall not make any contract for loans (other than preliminary loans) or for annual contributions pursuant to this chapter with respect to any low-rent housing project initiated after March 1, 1949

(i) unless the governing body of the locality involved has entered into an agreement with the public housing agency providing for the local cooperation required by the Authority pursuant to this chapter.”

The Department of Housing and Urban Development upon the application of a local public housing agency may provide federal assistance for the acquisition or construction of low rent housing designed to meet unsatisfied housing needs. 42 U.S.C. § 1401 provides, in pertinent part:

“It is declared to be the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income . . . that are injurious to the health, safety and morals of the citizens of the Nation.”

Specifically, the Secretary of HUD is authorized to make loans “to public housing agencies to assist the development, acquisition, or [the] administration of low-rent housing.” 42 U.S.C. § 1409. The Secretary may also make annual contribution contracts with local public housing agencies to ensure the low-rent character of housing projects which are federally assisted. 42 U.S.C. § 1410(a). While preliminary loans are designed, in effect, to permit the local public housing agency to develop and initiate plans of acquisition for low-rent housing, annual contributions are intended to assist the agency in amortizing its bond indebtedness, which may be incurred in the actual costs of construction and land acquisition. 42 U.S.C. §§ 1409, 1410.

The low rent housing program is based upon the determination of local agencies, as demonstrated to HUD, that there exists a need for low-rent housing in the locality concerned “not being adequately met by private enterprise”. 42 U.S.C. § 1415(7)(a). The responsibility for this assessment rests jointly with the local community and the local housing authority. If applicable federal requirements are satisfied, the Department of HUD may upon the application of the local public housing agency provide federal assistance by means of loans and annual contributions.

In its enactment of the United States Housing Act of 1949, 42 U.S.C. § 1401 et seq., the Congress expressly conditioned the provision of federal assistance either by preliminary loan or annual contributions upon the local public housing agency having entered into a local Cooperation Agreement with the governing body of the locality in which low-rent housing was to be acquired or constructed. 42 U.S.C. § 1415(7)(a), (b). The local Cooperation Agreement ensures that the low-rent character of federally assisted housing will be exempt from otherwise applicable State and local taxes (42 U.S.C. § 1410(h)), and that the provision of additional dwelling units under the program will result in corresponding elimination or improvement of unsafe or insanitary dwelling units situated in the locality. 42 U.S.C. § 1410(a).

The plaintiffs contend that the requirement of 42 U.S.C. § 1415(7) (b) (i) is unconstitutional both on its face and as it has been applied by the suburban defendants and the City of Cleveland. These will be examined seriatim.

The plaintiffs contend that the Cooperation Agreement requirement of local consent on its face violates the due process clause of the Fifth Amendment to the United States Constitution.¹

It is clear that not all statutory classifications are violative of equal protection as guaranteed by either the Fifth or Fourteenth Amendments. In 1970 in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), the Supreme Court stated:

“In the area of economics and social welfare, the State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality’. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 55 L.Ed. 369] ... ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426 [81 S.Ct. 1101, 6 L.Ed.2d 393].”

The argument which assumes that the constitutional guarantee of equal protection is not violated merely because a statute authorizes one citizen to be treated differently than others, is of course, subject to the qualification that the statute does not establish an invidious discrimination. In addition the argument does not reach the question of whether an otherwise constitutional enactment is being applied in an unconstitutional manner.

Equal protection, absent an invidious discrimination, requires only that a Congressional enactment have some reasonable relation to a statutory objective or purpose. This statute is certainly not arbitrary, or capricious and has a rational basis. This consent requirement was provided to ensure that low-rent housing would be coupled with the slum clearance provisions of the Act, and to buttress the notion of cooperative federalism.

The plaintiffs have not shown that the requirement of 42 U.S.C. § 1415(7)(b) (i) is based on a suspect category or affects fundamental rights. On its face this requirement does not discriminate on the basis of race. Moreover, it does not establish an invidious discrimination based upon wealth. While it is true that local consent is required only under the federal housing program for the poor, this does not, ipso facto, establish an invidious discrimination. Under some circumstances legislative enactments which have discriminated on the basis of wealth have been struck down. Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941) invalidated a state law which made it a crime for an individual to assist an indigent in entering the State. The criminal law has eradicated those enactments which denied appellate review solely on the grounds of the defendant’s inability to afford a transcript, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), and a state law which left to the discretion of the appellate court whether indigents would be provided counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Other cases which have held that wealth has constituted a suspect classification include Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (Poll tax) and Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (Prepayment of costs in divorce actions).

These cases, however, must be read in light of James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971) . The plaintiffs, who were eligible for low cost public housing, challenged the requirement of Article XXXIV of the California Constitution, which provided that no public housing project could be developed, constructed or acquired by any State public body, until approved by a majority of voters in the locality in which the proposed development was to be located. The Supreme Court found that Article XXXIV did not, on its face, involve the suspect category of race, since it applied to all low rent public housing projects, and that since it was supported by a rational basis, the provision was sustained. The court held that the evidence before it did not support the claim that while the law was seemingly neutral on its face, it in fact was aimed at a racial minority. While emphasizing and recognizing the California tradition of housing referenda which provide “. . . citizens a voice on questions of public policy.” 402 U.S. at 141, 91 S.Ct. at 1333, the opinion of the court does seem to indicate that wealth, per se, is not a suspect classification in the context of the constitutional examination of a provision relating to housing assistance or welfare. See Jefferson v. Hackney, 409 U.S. 898, 93 S.Ct. 178, 34 L.Ed.2d 156 (1972) ; English v. Town of Huntington, 448 F.2d 319 (2d Cir. 1971); Cf. Chidsey v. Guerin, 443 F.2d 584 (6th Cir. 1971).

The plaintiffs contend that their fundamental rights have been violated. They do not contend that there is a right to safe and sanitary housing, Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), but rather that there is a fundamental right to housing outside the inner city. Those interests which have been characterized as fundamental are quite few. To date the right asserted here has not been elevated to the level of a fundamental right. However, simply categorizing housing as a basic human need is not sufficient to call for application of strict judicial review outside of the carefully designed parameters which the Supreme Court has set for fundamental rights.

In spite of this it can not be denied that only the federal housing subsidies, which are directed at low income people, require any kind of local consent. The direct result of this is that whenever a suburban city refuses to sign a Cooperation Agreement, the bulk of poor persons residing in a nearby urban center will be effectively excluded from residence in that suburb. While it is true that if the federal low rent housing law specifically provided that Negroes could not live in White neighborhoods, there would be no question as to the unconstitutionality of such an enactment, Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), that case is not before the Court. The result of Section 1415(7) (b)(i) is not necessarily racial discrimination. The racial effect of this statute, if any, is not caused by the statute itself but rather by municipal action or inaction which may have used this provision as a shield to protect its inhabitants from integration by low income Negroes.

The argument which the plaintiffs have presented assumes that merely because low income Negroes do not live in the defendant suburban cities, the statute has established suspect classifications which have caused this result. The plaintiffs have not shown such a cause and effect relationship. It is true that recent Civil Rights Acts have insisted that no person should be denied the benefits of any federally assisted program on the basis of race, color or national origin. 42 U.S.C. § 2000d (1964). The Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., established a national policy against discrimination in the sale or rental of housing. As a result of these enactments, HUD has been charged with the responsibility of guaranteeing that projects assisted by it do not foster racial segregation. Hicks v. Weaver, 302 F.Supp. 619 (E.D.La.1969); Shannon v. HUD, 436 F.2d 809 (3rd Cir. 1970). This national policy of integration in housing patterns is not necessarily inconsistent with state cooperation. While the requirement of local cooperation may be at least partially inconsistent with the new policy of HUD, that does not, per se, establish a suspect classification on either racial or economic ground. Therefore, it seems that this law is neutral on its face. However, it may have been manipulated improperly.

Having determined that 42 U.S. C. § 1415(7) (b) is constitutional both on its face and as applied, we find no further questions which are required to be heard by this three judge court. The question of whether the defendants’ conduct violated the provisions of 42 U.S.C. § 1983 is not a proper matter for a three judge court. Therefore, without reaching any determination of the merits of Count Two of each complaint, this court remands consideration of those claims to Chief Judge Frank J. Battisti. Metcalf v. Swank, 293 F.Supp. 268 (W.D.Ill.1968); See Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

Therefore summary judgment shall enter .for the defendants on Count One of each complaint. The three judge panel is dissolved and the remainder of these consolidated cases are remanded to the judge to whom the case was originally assigned, Chief Judge Frank J. Battisti.

It is so ordered.

1 . The plaintiffs’ arguments based on freedom of movement and unlawful delegation are rejected.