|Warth v. Seldin
[ Powell ]
[ Douglas ]
[ Brennan ]
Warth v. Seldin
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE MARSHALL join, dissenting.
In this case, a wide range of plaintiffs, alleging various kinds of injuries, claimed to have been affected by the [p520] Penfield. zoning ordinance, on its face and as applied, and by other practices of the defendant officials of Penfield. Alleging that, as a result of these laws and practices, low and moderate income and minority people have been excluded from Penfield, and that this exclusion is unconstitutional, plaintiffs sought injunctive, declaratory, and monetary relief. The Court today, in an opinion that purports to be a "standing" opinion but that actually, I believe, has overtones of outmoded notions of pleading and of justiciability, refuses to find that any of the variously situated plaintiffs can clear numerous hurdles, some constructed here for the first time, necessary to establish "standing." While the Court gives lip service to the principle, oft repeated in recent years, [n1] that "standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal," ante at 500, in fact, the opinion, which tosses out of court almost every conceivable kind of plaintiff who could be injured by the activity claimed to be unconstitutional, can be explained only by an indefensible hostility to the claim on the merits. I can appreciate the Court's reluctance to adjudicate the complex and difficult legal questions involved in determining the constitutionality of practices which assertedly limit residence in a particular municipality to those who are white and relatively well off, and I also understand that the merits of this case could involve grave sociological and political ramifications. But courts cannot refuse to hear a case on the merits merely because they would prefer not to, and it is quite clear, when the record is viewed with dispassion, that at least three of the groups of plaintiffs have made [p521] allegations, and supported them with affidavits and documentary evidence, sufficient to survive a motion to dismiss for lack of standing. [n2]
Before considering the three groups I believe clearly to have standing -- the low income, minority plaintiffs, Rochester Home Builders Association, Inc., and the Housing Council in the Monroe County Area, Inc. -- it will be helpful to review the picture painted by the allegations as a whole, in order better to comprehend the interwoven interests of the various plaintiffs. Indeed, one glaring defect of the Court's opinion is that it views each set of plaintiffs as if it were prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined, and that the standing of any one group must take into account its position vis-a-vis the others. For example, the Court says that the low income minority plaintiffs have not alleged facts sufficient to show that, but for the exclusionary practices claimed, they would be able to reside in Penfield. The Court then intimates that such a causal relationship could be shown only if "the initial focus [is] on a particular project." Ante at 508 n. 18. Later, the Court objects to the ability of the Housing Council to prosecute the suit on behalf of its member, Penfield Better Homes Corp., despite the fact that Better Homes had displayed an interest in a particular project, because that project was no longer live. Thus, we must suppose that, even if the low income plaintiffs had alleged a desire to live in the Better Homes project, that allegation would [p522] be insufficient because it appears that that particular project might never be built. The rights of low income minority plaintiffs who desire to live in a locality, then, seem to turn on the willingness of a third party to litigate the legality of preclusion of a particular project, despite the fact that the third party may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low income minority plaintiffs' interest is not to live in a particular project, but to live somewhere in the town in a dwelling they can afford.
Accepting, as we must, the various allegations and affidavits as true, the following picture emerges: the Penfield zoning ordinance, by virtue of regulations concerning
lot area, set backs, . . . population density, density of use, units per acre, floor area, sewer requirements, traffic flow, ingress and egress[, and] street location,
makes "practically and economically impossible the construction of sufficient numbers of low and moderate income" housing. App. 25. The purpose of this ordinance was to preclude low and moderate income people and nonwhites from living in Penfield, id. at 15, and, particularly because of refusals to grant zoning variances and building permits and by using special permit procedures and other devices, id. at 17, the defendants succeeded in keeping "low and moderate income persons . . . and non-white persons . . . from residing within . . . Penfield." Id. at 18.
As a result of these practices, various of the plaintiffs were affected in different ways. For example, plaintiffs Ortiz, Reyes, Sinkler, and Broadnax, persons of low or moderate income and members of minority groups, alleged that, "as a result" of respondents' exclusionary scheme, id. at 18, 21, 23-24, 26, 29 (emphasis supplied), they could not live in Penfield, although they [p523] desired and attempted to do so, and consequently incurred greater commuting costs, lived in substandard housing, and had fewer services for their families and poorer schools for their children than if they had lived in Penfield. Members of the Rochester Home Builders Association were prevented from constructing homes for low and moderate income people in Penfield, id. at 153, harming them economically. And Penfield Better Homes, a member of the Housing Council, was frustrated in its attempt to build moderate income housing, id. at 174.
Thus, the portrait which emerges from the allegations and affidavits is one of total, purposeful, intransigent exclusion of certain classes of people from the town, pursuant to a conscious scheme never deviated from. Because of this scheme, those interested in building homes for the excluded groups were faced with insurmountable difficulties, and those of the excluded groups seeking homes in the locality quickly learned that their attempts were futile. Yet the Court turns the very success of the allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation. In effect, the Court tells the low income minority and building company plaintiffs they will not be permitted to prove what they have alleged -- that they could and would build and live in the town if changes were made in the zoning ordinance and its application -- because they have not succeeded in breaching, before the suit was filed, the very barriers which are the subject of the suit.
IILow come and Minority Plaintiffs
As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler alleged that "as a result" of respondents' exclusionary practices, they were unable, despite attempts, [p524] to find the housing they desired in Penfield, and consequently have incurred high commuting expenses, received poorer municipal services, [n3] and, in some instances, have been relegated to live in substandard housing. [n4] The Court does not, as it could not, suggest that [p525] the injuries, if proved, would be insufficient to give petitioners the requisite "personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 369 U.S. 186, 204 (1962); Flast v. Cohen, 392 U.S. 83, 99 (1968). Rather, it is abundantly clear that the harm alleged satisfies the "injury in fact, economic or otherwise," Data Processing Service v. Camp, 397 U.S. 150, 152 (1970), requirement which is prerequisite to standing in federal court. The harms claimed -- consisting of out-of-pocket losses as well as denial of specifically enumerated services available in Penfield but not in these petitioners' present communities, see nn. 3 and 4, supra -- are obviously more palpable and concrete than those held sufficient to sustain standing in other cases. See United States v. SCRAP, 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405 U.S. 727, 735 n. 8, 738, and n. 13 (1972). Cf. Data Processing, supra at 154.
Instead, the Court insists that these petitioners' allegations are insufficient to show that the harms suffered were caused by respondents' allegedly unconstitutional practices, because
their inability to reside in Penfield [may be] the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts.
Ante at 506.
True, this Court has held that to maintain standing, a plaintiff must not only allege an injury, but must also assert a "‘direct' relationship between the alleged injury [p526] and.the claim sought to be adjudicated," Linda R. S. v. Richard D., 410 U.S. 614, 618 (1973) -- that is,
[t]he party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute's] enforcement.
Massachusetts v. Mellon, 262 U.S. 447, 488 (1923) (emphasis supplied); Linda R. S., supra, at 618. But as the allegations recited above show, these petitioners have alleged precisely what our cases require -- that, because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered harm. [n5]
Thus, the Court's real holding is not that these petitioners have not alleged an injury resulting from respondents' action, but that they are not to be allowed to prove one, because
realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low and moderate cost housing,
ante at 505, and "the record is devoid of any indication that . . . [any] projects, would have satisfied petitioners' needs at prices they could afford." Ante at 506.
Certainly, this is not the sort of demonstration that can or should be required of petitioners at this preliminary stage. In SCRAP, supra, a similar challenge was made: it was claimed that the allegations were vague, 412 U.S. at 689 n. 15, and that the causation theory [p527] asserted was untrue, id. at 689. We said:
If . . . these allegations were, in fact, untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say . . . that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact.
Here, the very fact that, as the Court stresses, these petitioners' claim rests in part upon proving the intentions and capabilities of third parties to build in Penfield suitable housing which they can afford, coupled with the exclusionary character of the claim on the merits, makes it particularly inappropriate to assume that these petitioners' lack of specificity reflects a fatal weakness in their theory of causation. [n7] Obviously they cannot be expected, [p528] prior to discovery and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts. This Court has not required such unachievable specificity in standing cases in the past, see SCRAP, supra, and Jenkins, supra, and the fact that it does so now can only be explained by an indefensible determination by the Court to close the doors of the federal courts to claims of this kind. Understandably, today's decision will be read as revealing hostility to breaking down even unconstitutional zoning [p529] barriers that frustrate the deep human yearning of low income and minority groups for decent housing they can afford in decent surroundings, see nn. 3 and 4,supra.
IIIAssociations Including Building Concerns
Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low and moderate income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom.
Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that "[d]uring the past 15 years, over 80% of the private housing units constructed in the Town of Penfield have been constructed by [its] members." App. 147. Because of respondents' refusal to grant relief from Penfield's restrictive housing statutes, members of Home Builders could not proceed with planned low and moderate income housing projects, id. at 157, and thereby lost profits. Id. at 156.
Housing Council numbers among its members at least 17 groups involved in the development and construction of low and middle-income housing. In particular, one member, Penfield Better Homes, "is and has been actively attempting to develop moderate income housing in . . . Penfield" (emphasis supplied), id. at 174, but has been unable to secure the necessary approvals. Ibid.
The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular [p530] project. Thus, Home Builders has "failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention," ante at 516 (emphasis supplied), while "the controversy between respondents and Better Homes, however vigorous it may once have been, [has not] remained a live, concrete dispute." Ante at 517.
Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns' experience in the past with Penfield officials has shown any plans for low and moderate income housing to be futile, for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low or moderate income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low and moderate income people.
When this sort of "pattern and practice" claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court's conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court.
I would reverse the judgment of the Court of Appeals.
1. Flast v. Cohen, 392 U.S. 83, 99 (1968); Data Processing Service v. Camp, 397 U.S. 150, 153, 158 (1970); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 225 n. 15 (1974). See Barlow v. Collins, 397 U.S. 159, 176 (1970) (opinion of BRENNAN, J.).
2. Because at least three groups of plaintiffs have, in my view, alleged standing sufficient to require this lawsuit to proceed to discovery and trial, I do not deal in this dissent with the standing of the remaining petitioners.
3. Specifically, petitioner Ortiz claims, among other things, that the Penfield schools offer a much broader curriculum, including vocational education, than the school his children attend, as well as special tutoring and counseling programs not available to his children. Penfield also provides a comprehensive recreational program, while his community offers very little, and a full-time, comprehensive public library, while his community has only limited library services. App. 377-400.
Petitioner Broadnax claimed that, if she lived in Penfield, there would be playgrounds for her children, effective police protection, and adequate garbage disposal, all of which are lacking in her present community. Id. at 419. As a result, her children are not safe and there are mice, rats, and roaches in her house. Id. at 416-417, 419.
Petitioner Reyes stated, similarly, that she is currently living with inadequate police protection, id. at 426, and sending her children to inferior schools, id. at. 433.
Finally, petitioner Sinkler also said that, in her current home, police protection is inadequate, id. at 443, there are no play areas for children, id. at 449, and the schools are totally inadequate. Id. at 454.
These are only summaries of the affidavits, which are quite specific in detailing the inadequacies of petitioners' current communities and the injuries suffered thereby as well as, in Ortiz' affidavit, the services provided by Penfield which would alleviate many of these problems.
4. Petitioner Broadnax said that, because of the poor choice of housing available at her income, she was forced to rent an apartment which has "many leaks in the roof, bad wiring, roach infestation, rat and mice infestation, crumbling house foundation, broken front door, broken hot water heater, etc." Id. at 410. As a result, aside from the ordinary dangers such conditions obviously present, one son's asthma condition has been exacerbated. Id. at 413.
Petitioner Sinkler stated that, again because only housing in Rochester central city is available to moderate-income, minority people, she is living in a seventh-floor apartment with exposed radiator pipes, no elevator, and no screens, and violence, theft, and sexual attacks are frequent. Id. at 441-446.
Once again, the above are short summaries of long, detailed accounts of the harms suffered.
5. This case is quite different from Linda R. S. v. Richard D. In Linda R. S., the problem was that, even if everything alleged were proved, it was still quite possible that petitioner's husband would not be prosecuted for nonsupport, or that, if prosecuted, he would still not contribute to his children's support. Nothing which could be proved at trial could possibly show otherwise. Here, if these petitioners prove what they have alleged, they will have shown that respondents' actions did cause their injury.
6. There is some suggestion made in the briefs that, by virtue of the inclusion in the record of affidavits and documents, the motion to dismiss was, under Fed.Rule Civ.Proc. 12(b), converted into a Rule 56 motion for summary judgment. In terms, the portion of Rule 12(b) concerning conversion to a Rule 56 motion applies only to a motion to dismiss for failure to state a cause of action, and not to a motion to dismiss for other reasons. At any rate, respondents filed no counter-affidavits proper under Rule 56(e), so that, even if Rule 56 were applied, respondents have not at this stage disproved the allegations.
7. The Court, glancing at the projects mentioned in the record which might have been built but for the exclusionary practices alleged, concludes that petitioners Ortiz and Broadnax earned too little to afford suitable housing in them, and that petitioner Reyes earned too much. Ante at 506-507, n. 16. As the Court implicitly acknowledges, petitioner Sinkler, at least, may well have been able to live in the Better Homes Project. Further, there appears in the record as it stands a report of the Penfield Housing Task Force on Moderate Income Housing, App. 487-581, prepared for the Penfield Town Board itself, which defines "moderate income families as families having incomes between $5,500 and $11,000 per year, depending on the size of the family," id. at 492, and moderate-income housing as housing "priced below $20,000 or [carrying] a rental price of less than $150 a month," id. at 493. See also, with respect to "low income," id. at 527. Thus, while the Court might not know what was meant by "low" and "moderate" income housing, ante at 494-495, n. 5, and 506-507, n. 16, respondents clearly did. The petitioners here under discussion fell within the Board's own definition of moderate-income families, except for petitioner Reyes, who alleges that she could afford a house for $20,000 but not more. App. 428. And the Task Force Report does set out, id. at 503-516, changes in the zoning ordinance and its application which could result in housing which moderate-income people could afford, even to the extent of setting out a budget provided by a builder for a house costing $18,900, id. at 507. The causation theory which the Court finds improbable, then, was adopted by a task force of the Town Board itself. Of course, we do not know at this stage whether the particular named plaintiffs would certainly have benefited from the changes recommended by the task force, but at least there is a good chance that, after discovery and trial, they could show they would.