Rogers v Loether Brief Amicus Curiae

    Supreme ©mart xti %  Itutrin Btntts
O ctober  T e r m ,  1973

IN THE

No. 72-1035

J u l ia  R ogers,  Petitioner,
v.

L ero y  L o e t h e r ,  e t  a l ., Respondents

On Writ of Certiorari to the United States Court of Appeals 
for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL COMMITTEE 
AGAINST DISCRIMINATION IN HOUSING. 

WASHINGTON. D. C.

N o r m a n  C. A m a k e r  
M o ll ie  W .  N e a l  
Attorneys for The National 

Committee Against Discrimi­
nation In Housing 
1425 H Street, N.W., Ste. 410 
Washington, D.C. 20005 
(202) 783-8150

P ress of B yron S. A dam s P rinting, Inc., W ashington, D . C.



Page
Interest Of The Am iens.................................................... 1

Opinions B elow .................................................................  2

Jurisdiction ....................................................................... 2

Constitutional Provisions And Statutes.......................  3

Questions Presented ....................    3

Statement Of The Case And The Proceedings Below . . 3

Summary Of The Argum ent..........................................  7

Argument:
I. The District Court Did Not Err In Denying De­

fendant’s Demand For Jury Trial In An Action 
For Injunctive Relief And Damages Under Sec­
tion 812 Of The Fair Housing A c t .....................  10

II. Title VIII Of The Civil Rights Act Of 1968 Is A 
Remedial Statute And Should Be Liberally Con­
strued To Effect The Objective Sought...............  20

Conclusion ......................................................................... 23

TABLE OF AUTHORITIES
Cases :
Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736 (1911)........ 12
Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79

S.Ct. 948 (1959) .......................................................  16
Brown v. LoDuca, 307 F.Supp. 102 (E.D. Wisconsin, 

1969) ........................................................................... 15

TABLE OF CONTENTS



11 Table of Contents Continued

Page
Cheatwood v. South Central Bell Telephone and Tele­

graph Company, 303 F.Supp. 754 (M.D. Alabama,
N.D., 1969) .................................................................  18

DeWolf v. Ford, 193 N.Y. 397, 86 N.E. 527 (1908) . . . .  12
Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894

(1962) .........................................................................  16
Hayes v. Seaboard Coast Line Railroad Company, 46

F.R.D. 49 (S.D. Georgia, 1969)..................................  18
Johnson v. Decider, 333 F.Supp. 88 (N.D. Cal. 1971) .. 15
Johnson v. Georgia Highway Express, Inc., 417 F.2d

1122 (5th Cir. 1969) ..................................................  18
Jones v. Mayer Realty Company, 392 U.S. 409, 88 S.Ct.

2186 (1968) ...............................................................  10
NLRB v. Jones \<& Laughlin Steel Corporation, 301

U.S. 1, 57 S.Ct. 615 (1937) ....................................... 17
Odom v. East Avenue Corporation, 34 N.Y.S. 2d 312

(1942) .........................................................................  12
Olearchick v. American Steel Foundries, Martin v. Car- 

negie-lUinois Steel Corp., 73 F.Supp. 273 (W.D.
Pa. 1947) ...................................................................  19

Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7 L.Ed. 732
(1830) .........................................................................  11

Smith v. Hampton Training School for Nurses, 360 i
F.2d 577 (4th Cir. 1966)............................................  18

Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733 (1970)
16,19, 20

Trafficante v. Metropolitan Life Insurance Company,
409 U.S. 205, 93 S.Ct. 304 (1973) ...........................9, 20

United States v. Johnson Lake Inc., 312 F.Supp. 1376
(S.D. Alabama, S.D. 1970) .....................................  23

Wirtz v. District Council No. 21 Brotherhood of Paint­
ers, Decorators, and Paperhangers of America,
211 F.Supp. 253 (E.D. Pa. 1962).............................. 17

Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965).................  19
Wirtz v. Robert E. Bob Adair, Inc., 224 F.Supp. 750

(W.D. Ark. 1963) ...................................................... 19
Wirtz v. Thompson Packers, Inc., 224 F.Supp. 960 (E.D.

La. 1963) ...................................................................  19



Table of Contents Continued m

Page
Statutes:

Title VIII, Civil Eights Act of 1968, 42 U.S.C. 3601-
3619

§810 ..............................................................7,8,13,14
§812 .......................................................... 7,8,9,14,15
§ 814 ....................................................................... 9

Title VII, Civil Eights Act 1964, 42 U.S.C. 2000e........ 18

Fair Labor Standards Act
§ 1 6 ..........................................................................  19
§17 ...................................................................... 19,20

Other A uthorities :
“ Equity’s Eole in Protection of Civil Eights” , 37 Iowa 

L.Eev. 268 (1952) ..................................................... 13



(tort of United Btatvz
O ctober  T e r m , 1973

IN THE

Ho. 72-1035

J u l ia  R ogers,  Petitioner,
Y.

L ero y  L o e t h e r , e t  a l ., Respondents

On Wril of Certiorari to the United States Court of Appeals 
for the Seventh Circuit

BRIEF AMICUS CURIAE OF THE NATIONAL COMMITTEE 
AGAINST DISCRIMINATION IN HOUSING. 

WASHINGTON. D. C.

INTEREST OF THE AMICUS

This Brief is filed with the written consent of the 
parties hereto, pursuant to Rule 42(2), Supreme 
Court Rules.

NCDH was founded in 1950 to establish and imple­
ment a program to eliminate racial segregation and dis­
crimination in housing. Since then, N CDH has lodged 
numerous challenges to discriminatory housing prac­
tices and exclusionary land use controls, and has been 
actively engaged in educational projects designed to



2

insure nondiscriminatory access of minorities and the 
poor to equal opportunity in housing. In its con­
tinuing effort to eradicate racial discrimination and. 
to achieve housing dispersal on a non-segregated basis, 
this Brief is submitted in the belief that Title V III  
of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619 
(hereinafter the “ Fair Housing Act” ), can be properly 
administered and enforced only by preserving to priv­
ate citizens, seeking to vindicate their right to freedom 
from discrimination in the purchase and lease of real 
property, the most expeditious and inexpensive legal 
redress. To encumber unduly the assertion of these 
federally protected rights by the complicated and ex­
pensive procedures inherent in a jury trial would only 
serve to dilute the effectiveness of the Statute, dis­
courage aggrieved citizens from seeking enforcement, 
and frustrate the intent of Congress.

OPINIONS BELOW

1. Opinion of the District Court denying demand for 
jury trial was entered on May 19, 1970; reported at 
312 F.Supp. 1008.

2. District Court’s unreported findings of fact and 
conclusions of law, entered October 27,1970.1

3. Opinion of the Court of Appeals entered on Sep­
tember 29,1972; reported at 467 F.2d 1110.

JURISDICTION

Judgment of the Court of Appeals was entered Sep­
tember 29, 1972. Petition for writ of certiorari was 
filed January 26,1973, and granted June 11,1973. The 
jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

1 Appendix to Petition for W rit o f Certiorari, pp. 7a-12a.



3

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED

1. United States Constitution, Amendment VII.
2. United States Constitution, Amendment X III .
3. The Civil Rights Act of 1968, §§ 801-819 (Title 42 

U.S.C. §§3601-3619).

QUESTIONS PRESENTED

1. Whether an action for injunctive relief and dam­
ages, either actual or punitive, brought under a statu­
torily created cause of action under the Pair Housing 
Act by a private citizen to enforce her right to freedom 
from discrimination on the basis of race in the rental of 
real property is an action in which Defendant is en­
titled to a trial by jury?

2. Whether the District Court erred in denying 
the defendants’ demand for jury trial, in an action 
brought pursuant to a statutorily created cause of 
action under the Fair Housing Act for punitive dam­
ages and injunctive relief against discrimination on 
the basis of race in the rental of an apartment, where 
the only issues remaining for determination were 
those of punitive and compensatory damages—the 
injunction having been dissolved prior thereto by the 
consent of the Plaintiff?

STATEMENT OF THE CASE AND PROCEEDINGS BELOW

This case was filed in the United States District 
Court for the Eastern District of Wisconsin seeking 
relief under the Civil Rights Act of 1968, Title V III, 
(42 U.S.C. §§3601-3619), which prohibits discrimina­
tion in the sale or rental of housing on the basis of 
race, color, religion or national origin. The District 
Court’s jurisdiction was based on 42 U.S.C. § 3612(a).



4

On October 30, 1969, Jacqueline Haessly responded 
on behalf of her friend, Petitioner Julia Rogers, who 
was hospitalized, to an advertisement in the Milwau­
kee Journal for the rental of an apartment. After a 
brief interview with Mrs. Perez, the cousin of the 
landlords, Leroy and Mariane Loether, their apparent 
agent, and following a phone conversation between 
Mrs. Perez and Mrs. Loether, Mrs. Perez was 
authorized to accept a deposit on the apartment from 
Miss Haessly on Mrs. Rogers’ behalf. During that 
conversation, Mrs. Loether also elicited information 
regarding the applicant’s financial status, marital 
status, and family size. Upon Mrs. Loether’s re­
quest, Miss Haessly gave her the number of the hospital 
room in which Mrs. Rogers was confined to allow her 
to discuss the rental directly with the Petitioner.2

Mrs. Loether called Mrs. Rogers at the hospital and 
discussed the rental of the apartment, at which time 
Mrs. Rogers informed Mrs. Loether that she was black. 
Upon the disclosure of Petitioner’s race, Defendants 
revoked the apartment rental.3

Petitioner filed her complaint in the District Court 
on November 11, 1969, for injunctive relief and puni­
tive damages against Leroy and Mariane Loether 
and Mrs. Anthony Perez for refusal to rent her an 
apartment because of her race in violation of the 
Pair Housing Act.

The District Court granted Petitioner’s motion 
for temporary restraining order on November 17, 
1969, and after an evidentiary hearing on November

2 District Court’s oral Findings o f Fact and Conclusions of 
Law. Appendix to Petition for W rit of Certiorari, pp. 8a-9a.

8 Id. at pp. 9a-10a.



5

20, 1969, entered a preliminary injunction restrain­
ing the rental of the apartment pending final deter­
mination by the Court.4 5

Defendants answered and demanded a trial by jury.

Petitioner, after tbe issuance of tbe preliminary 
injunction and before tbe Court’s ruling on tbe De­
fendants’ jury demand, found a place to live. Tbe 
Court thereupon on April 30, 1970 dissolved tbe pre­
liminary injunction with tbe consent o f the Peti­
tioner.®

Petitioner, at pre-trial bearing, indicated an interest 
in compensatory damages, and tbe Court viewing her 
claim as inclusive of both compensatory and punitive 
damages entered a pre-trial order requiring her to sub­
mit an itemized statement of her special damages. 
(Petition for Writ of Certiorari, p. 7).

The Court, subsequent thereto, denied the Defend­
ants’ demand for jury trial, leaving pending before it 
for trial only tbe issues of punitive and compensatory 
damages, and attorney’s fees.

Tbe District Court in its opinion and order of May 
19, 1970 denying demand for jury trial found that

“ this cause of action is a statutory one invoking 
the equity powers of tbe court, by which tbe court 
may award compensatory and punitive money 
damages as an integral part of the final decree so 
that complete relief may be bad. The action is not 
one in the nature of a suit at common law, and

4 Id. at p. 7a.

5 IMd.



6

therefore there is no right to trial by jury on the 
issne of money damages in the case.”  Rogers v. 
Loether, 312 F.Supp. 1008, 1009.

The Court further held that
“ An action under Title V III  is not an action at 
common law. The statute does not expressly pro­
vide for trial by jury of any issues in the action.”  
(312 F. Supp. at 1010)

At trial the Court found that Plaintiff had suffered 
no actual damages 6 but assessed punitive damages of 
$250.00. The request for attorney’s fees was denied.

Defendants appealed the decision of the District 
Court to the Seventh Circuit Court of Appeals alleg­
ing error in the Court’s finding of discrimination, the 
award of punitive damages, and denial of jury demand.

The Court of Appeals found no error in the award 
of punitive damages and finding of discrimination, 
Rogers v. Loether, 467 F.2d 1110, 1112, but reversed 
and remanded on the issue of denial of jury trial.

The Court of Appeals held:
“ (1) the constitutional right to trial by jury ap­
plies in at least some judicial proceedings to en­
force rights created by statute; (2) this action for 
damages is “ in the nature of a suit at common 
law” ; . .  . (3) the nature of the claim is “ legal”  . . . 
(4) the right to a jury trial may not be denied on 
the ground that the damage claim is incidental to 
a claim for equitable relief . . .”  467 F.2d at
1112-1113.

6 Petitioner having failed to file, as ordered by the Court at 
pre-trial hearings, a statement o f special damages, the court sus­
tained defendants’ objection to testimony concerning actual dam­
ages. (Trial transcript, October 26, 1970, p. 5).



7

SUMMARY OF THE ARGUMENT

The Seventh Amendment to the United States Con­
stitution provides that in “ (s)uits at common law, 
where the value in controversy exceeds twenty dollars, 
the right to trial by jury shall be preserved.”

It is the position of the Amicus that the constitu­
tional guarantee to jury trial is not applicable to, and 
in the interest of justice should not be extended to, an 
action brought under Section 812 of the Fair Housing 
Act by a private person, seeking to vindicate the rights 
declared by that statute.

The nature of the action created under Section 812 
of the Act is an equitable one for which there is no 
adequate remedy at law and for which no analogous 
counterpart existed at common law at the time of the 
adoption of the Seventh Amendment.

The action, as created by statute, is not one for 
money damages per se based on a traditional legal 
claim. There is, in fact, no amount in controversy— 
nor is there a claim akin to any action triable by jury 
for which money damages may be had. The primary 
thrust of the statute is remedial—the enforcement of 
the general public interest in insuring continuing com­
pliance with the national policy declared by Congress 
“ to provide, within constitutional limits, for fair hous­
ing throughout the United States.”

The Act provides two conditions under which an 
aggrieved party may bring a civil action:

(1) Under Section 810, the Secretary of Housing 
and Urban Development is charged with the duty of 
enforcement through an administrative procedure 
whereby the aggrieved party files a complaint and the



8

Secretary takes appropriate measures to effectuate 
compliance. I f tlie Secretary is unable to obtain volun­
tary compliance, the aggrieved person may commence 
a civil action in the appropriate U. S. District Court 
under the conditions set forth in Section 810(d).

(2) Similarly, a civil action under Section 812 may 
be brought by the aggrieved private person for enforce­
ment of rights guaranteed under the A ct:

“ The Court may grant as relief, as it deems appro­
priate, any permanent or temporary injunction, 
temporary restraining order, or other order, and 
may award to the plaintiff actual damages and not 
more than $1000 punitive damages . . . ”

A  civil action brought under either Section 810 or 
812 is subject to continuance by the Court from time 
to time before bringing it to trial “ if  the Court believes 
that the conciliation efforts of the Secretary or a State 
or local agency are likely to result in a satisfactory 
settlement of the discriminatory housing practice com­
plained of in the complaint.”

The language of the Act (Section 812(a)) is framed 
in discretionary terms respecting the duty of the Court 
to first conciliate the matter before proceeding to trial.

Thus, though the statute creates a new cause of ac­
tion, Congress has specifically embodied its intent that 
the statutory procedure, as set forth under the Act, 
is akin more to a proceeding of judicial mediation or 
conciliation than it is to the traditional form of civil 
action requiring issues to be adjudicated by a jury. 
To require a trial by jury under these proceedings, 
where such a safeguard clearly is not required, would 
only serve to complicate the proceedings, causing un­
usual delay and extreme hardship to the parties. Fur­



9

thermore, it would discourage, as inexpedient, the 
primary means of enforcement of the Act. Trafficante 
v. Metropolitan Life Insurance Company, 409 TT.S. 
205, 209.

The award of damages, as contemplated by the Act, 
is not based on a legal claim cognizable at common 
law, but instead is framed in language which au­
thorizes the judge, sitting without a jury, to grant 
whatever relief he deems just and appropriate that will 
afford complete relief and insure continuing compli­
ance under the circumstances of each case. Moreover, 
to deny the aggrieved person, seeking enforcement of 
rights granted under the Act, the expeditious relief 
required by Section 814 of the Act would thwart the 
intent of Congress by rendering ineffective the con­
templated remedy. Section 814 of the Act provides:

“ any court in which a proceeding is instituted un­
der Section 3612 or 3613 of this title shall assign 
the case for hearing at the earliest practicable date 
and cause the case to be in every way expedited.”  
(42 TT.S.C. § 3614)

The majority of the aggrieved persons who seek 
redress under the provisions of the Act are minority 
and poor. The lengthy and cumbersome requirement 
of a jury trial proceeding in the determination of their 
claims would work an undue hardship on these classes, 
imposing a heavy burden for which there can be 
advanced no legitimate purpose. Minority groups who 
are discriminated against in access to housing have 
neither the resources nor the luxury of time inherent 
in a lengthy jury trial proceeding. Their housing need 
is imminent and urgent, necessitating an expeditious 
resolution of their claim if the remedy afforded them 
by statute is to have any real significance. To require



10

that a claimant wait until his or her claim is determined 
by a jury, would in most instances result in a discon­
tinuance of the action, or a dilution of its effectiveness 
due to the immediate need to seek alternate housing 
accommodations. Discrimination on the basis of race, 
as in this case, has too long been a scourge to this na­
tion’s principles of democracy and freedom. A  re­
quirement of any less than the full and effective imple­
mentation of Federal statutes designed to obliterate 
the historical vestiges of slavery from the lives of 
more than 20 million Americans is to deny equal protec­
tion of laws and to impose upon a racial class a burden 
too long carried. See Jones v. Mayer Co., 392 U.S. 
409, at 444-445, 88 S.Ct. 2186, at 2205-2206 (concurring 
opinion of Mr. Justice Douglas). The mandate of 
Congress is clear. The Fair Housing Act must be 
administered and enforced, in accordance with the 
language of the statute, in an expeditious and efficient 
manner if  the declaration of the national policy of fair 
housing throughout the nation is to be realized.

ARGUMENT

I. The Disirict Court Did Not Err in Denying Defendants' 
Demand for Jury Trial in an Action for Injunctive Re­
lief and Damages Under Section 812 of the Fair Housing 
Act.

The Seventh Amendment right to jury trial is not 
applicable to, nor should it be extended to, claims aris­
ing under the Fair Housing Act, Section 812. The 
right created under that provision of the Act is a new 
equitable cause of action.

The award of damages is expressly committed to 
the discretion of the court—with an overriding condi­
tion, consistent with the perceived intent of Congress— 
that the court take every measure judicially expedient



11

to insure conciliation of claims without trial, if pos­
sible. The Seventh Amendment only preserves a right 
to jury trial in suits existing at common law at the 
time the Amendment was adopted. The crux of the 
issue in this case is whether the claim created under 
the Fair Housing Act is analogous to a suit at common 
law to which the defendant is entitled to a trial by 
jury-

Historically, if a new cause of action was created by 
statute and the statute was silent on the mode of trial, 
the court looked to the nearest analogy to decide if 
there was a right to jury trial. The Court of Appeals, 
considering the nature of the substantive right asserted 
here,7 concluded that it was analogous to a common law 
action of a traveler against the innkeeper who refused 
without justification to rent lodging (467 F.2d at 
1117). However, historically the innkeeper’s duty to 
provide lodging to a traveler was not founded on a 
traveler’s right to be free from discrimination, but 
rather was based upon contract. It was a well estab­
lished legal principle in common law jurisdictions that 
the business of an innkeeper was quasi-public in char­
acter. The underlying theory governing the relation 
of the innkeeper and guest was that “ The innkeeper 
holds himself out as able and willing to entertain 
guests for hire; and in the absence of a specific con­
tract, the law implies that he will furnish such enter­
tainment as the character of his inn and reasonable 
attention to the convenience and comfort of his guests

7 See 467 F.2d at 1113-1114, where the court discusses the 
Seventh Amendment’s inapplicability to claims that did not arise 
under common law, and analyzed the claim asserted herein under 
the criteria set forth by Mr. Justice Story in Parsons v. Bedford, 
28 U.S. (3 Pet.) 433, 7 L.Ed. 732.



12

will afford.”  DeW olf v. Ford, 193 N.Y. 397, 86 N.E. 
527, 530. The action was one to recover damages re­
sulting from the innkeeper’s breach of the duty owed 
to his guest. Damages were recoverable in such cases 
not merely because defendant was hound to give plain­
tiff accommodations, but also because of the indignity 
suffered by public expulsion, Aaron v. Ward, 203 1ST.Y. 
351, 357, 96 N.E. 736, 738; Odom v. East Avenue Cor­
poration, 34 N.Y.S.2d 312.

As thus illuminated, it is apparent that expansion of 
this common law cause of action to the right of racial 
minorities to be free from discrimination in housing, 
or to encompass a modern landlord’s duty to refrain 
from refusal to rent real property on the basis of race, 
color, religion or national origin, strains the imagina­
tion.

The practices of slavery and bondage were widely 
sanctioned throughout the colonies and the old world.8 
Thus, it is unreasonable to conclude that there were 
any actions at common law for the protection of rights 
against discrimination, racial or otherwise, as contem­
plated by the Fair Housing Act. The nature of the 
substantive right granted under the Act is not based 
on contract, hut instead is founded upon the demo­
cratic principle that every citizen in the United States 
has an inherent right to purchase or lease real prop­
erty without regard to previous condition of servitude, 
national origin or creed.

8 Note Petition for W rit of Certiorari, pp. 16-17, citing Somerset 
V. Stewart, 98 Eng. Rep. 499 (K.B. 1772) ; King v. Inhabitants of 
Thomas Ditton, 99 Eng. Rep. 891 (1785); and A. Lester & Gr. 
Bindman, Bace and Law 32 (1972).



13

Further, unlike the action at common law available 
to a traveler against an innkeeper, the rights declared 
under the Fair Housing Act are not enforced through 
an action at law for damages. Instead the action is 
expressly for injunctive relief—historically a matter 
of equity jurisdiction and unknown at common law. 
It is not unintentional that the drafters of the Fair 
Housing legislation did not more specifically provide 
for a civil action for money damages alone. Congress 
realized that civil rights cannot adequately be pro­
tected in a damage action. The very nature of the 
right is such that money damages cannot compensate 
for the loss suffered. But courts of equity have rem­
edies available which are capable of giving complete 
relief—equity relief being free from local prejudice 
often found in juries. It is uncontroverted that there 
is no right to a trial by jury in an action for injunc­
tive relief. A  court in equity has exclusive jurisdic­
tion to fashion relief tailored to protect the right in­
volved in each individual situation and to create a 
deterrent to the potential wrongdoer before the viola­
tion is commited.9

That Congress intended the remedy created under 
the Fair Housing Act to be one of exclusive equitable 
jurisdiction can be inferred from the language of the 
Act’s enforcement provisions:

“ Any person who claims to have been injured by 
a discriminatory housing practice or who believes 
that he will be irrevocably injured by a discrim­
inatory housing practice that is about to occur 
. . . may file a complaint with the Secretary.”  
(42 H.S.C.A. § 3610(a))

9 “ Equity’s Bole in Protection o f Civil Rights” , 37 Iowa L. Rev. 
268 (1952).



14

Clearly, the relief afforded is not only addressed to 
wrongful acts already committed, but also to anticipa­
tory acts for which no action at common law was avail­
able. Further, Section 3610(d), Title 42 U.S.C. 
provides:

“ I f  within thirty days after a complaint is filed 
with the Secretary or . . . the Secretary has been 
unable to obtain voluntary compliance . . . the per­
son aggrieved may, within thirty days thereafter, 
commence a civil action in any appropriate United 
States district court, against the respondent . . . 
to enforce the rights granted or protected by this 
subchapter . . .  I f  the court finds that a discrim­
inatory housing practice has occurred or is about 
to occur, the coiirt may, subject to provisions of 
§ 3612 of this title, enjoin the respondent from 
engaging in such practice or order such affirma­
tive action as may be appropriate.”

Section 3612(a), Title 42, U.S.C., provides:
“ The rights granted by sections 3603, 3604, 3605, 
and 3606 of this title may be enforced by civil 
actions in appropriate United States district 
courts without regard to the amount in contro­
versy . . . the court shall continue such civil case 
brought pursuant to this section or section 
3610(d) of this title from time to time before 
bringing it to trial if the court believes that the 
conciliation efforts of the Secretary or a State or 
local agency are likely to result in satisfactory 
settlement of the discriminatory housing practice 
complained of in the complaint made to the Sec­
retary or to the local or State agency and which 
practice forms the basis for the action in court.”

The court in enunciating the proposition that Sec­
tion 3610 and Section 3612 constitute alternative rem­
edies in the enforcement of the Fair Housing Act, in



15

Johnson v. Decider, 333 F.Supp. 88, 89 (N.D. Cal. 
1971) commented that “ Section 3612 would appear 
to allow enforcement of rights guaranteed by the Fair 
Housing Act by suit filed in any district court which 
meets that section’s venue requirement . . .  No pre­
requisite of seeking administrative relief from HUD 
is imposed. It is expressly provided, however, that 
the suit may be continued, if the administrative efforts 
the Court’s opinion, are likely to result in satisfactory 
settlement of the problem.”  See also Brown v. 
LoDuca, 307 F.Supp. 102,1969.

Finally, Section 812(c) provides:
“ The court may grant as relief, as it deems ap­
propriate, any permanent or temporary injunc­
tion, temporary restraining order or other order, 
and may award to the plaintiff actual damages 
and not more than $1,000 punitive damages . . .”  
(emphasis added) 42 U.S.C. 3612(c).

Clearly, from a reading of the statute as a whole, 
equity powers of a court to grant injunctive relief 
to correct a violation which has either occurred or is 
about to occur, and to order “ as the court deems ap­
propriate”  complete relief are expressly granted to 
the court.

There is no action at common law analogous to the 
relief Congress contemplated granting to an aggrieved 
party under this Act. A claim arising thereunder does 
not present issues entitling respondent to a trial by 
jury.

The Court of Appeals’ finding that the nature of 
the substantive right asserted was analogous to a com­
mon law cause of action existing at the time of the 
adoption of the Seventh Amendment was simply



16

wrong. Its rationalization that Dairy Queen v. Wood, 
369 U.S. 469, 82 S.Ct. 894, required the damage issue 
to be tried to a jury was also wrong. Dairy Queen 
does indeed stand for the proposition that a claim 
otherwise triable by jury must be so tried, even if it 
may be deemed incidental to the claim for injunc­
tion; a litigant may not be denied Seventh Amend­
ment rights in a claim where legal issues are presented 
in combination with equitable issues. However, this 
is not a Dairy Queen situation. Under the language 
of the statute, there is no legal claim, only an equitable 
one. The award of punitive and compensatory dam­
ages is discretionary, affording to the court exclusive 
equitable jurisdiction to decree complete relief. The 
damage provisions of the Pair Housing Act do not 
authorize a claim for a purely money judgment. Com­
pensation to a claimant under the Act is woven into 
the fabric of a remedial measure for correction of 
violations of the nation’s public policy against dis­
crimination.

The Court further supported its conclusions by rely­
ing on Beacon Theaters Inc. v. Westover, 359 U.S. 
500, 79 S.Ct. 948. Beacon Theaters rests on the propo­
sition that the parties were not excluded from assert­
ing their claims through an adequate remedy at law. 
In the traditional sense, there is no adequate remedy 
at law here and thus Beacon too is distinguishable 
from the instant case.

Finally, Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 
733 (1970) is considered by the Court of Appeals as 
controlling in this case. However, Ross v. Bernhard 
was an action brought as a derivative suit. This Court 
held that “ the right to jury trial attaches to those 
issues in derivative actions as to which the corpora­



17

tion, if it had been suing in its own right would have 
been entitled to jury” . A  derivative stockholder’s 
suit is in the nature of an equitable remedy, allowing 
the stockholders to enforce a corporate cause of action 
against the officers, directors, and third parties and to 
call upon said parties for an accounting. Where the 
corporation could have properly brought a hill of 
equity, the action is clearly equitable and no right to 
jury trial attaches. It is only when the cause of action 
asserted, no matter what the form of the complaint, 
could have been brought by the corporation in an ac­
tion at law that the holding of Ross v. Bernhard is 
applicable for then, legal issues common to issues of 
an equitable nature, are triable by jury. 396 TT.S. 
534-536.

Once again, the ultimate question is whether the 
plaintiff in an action brought under the Pair Housing 
Act has an adequate remedy at law. Can the claim 
asserted in equity also be brought in an action at law *? 
Clearly, the answer is no. The claim under the statute 
is a purely equitable one to which the Seventh Amend­
ment right to trial by jury does not attach.

A long line of cases in the Federal courts support 
the proposition that “ a statute will not be read as 
having created a right to trial by jury, on a claim for 
injunction unless Congress has expressly so pro­
vided.”  Wirtz v. District Council No. 21 Brother­
hood of Painters, Decorators and Paperhangers of 
America, 211 F.Supp. 253 (E.D. Pa. 1962). In NLRB 
v. Jones d  Laughlin Steel Corp., 301 IT.S. 1, 57 S.Ct. 
615, 629 (1937), this Court indicated that if Congress 
creates a statutory proceeding that is not in the nature 
of a suit at common law, the right to trial by jury is 
not preserved.



18

The District Court in its order and opinion deny­
ing the respondent’s demand for jury trial relied 
heavily on cases dealing with the award of hack pay 
in discrimination cases brought under Title V II  of 
the Civil Rights Act of 1964. It is the position of the 
Amicus that these cases are more analogous to the case 
before this Court.

In Johnson v. Georgia Highway Express, Inc., 417 
F.2d 1122, 1125 (5th Cir. 1969) and the cases cited 
therein, the court held with reference to the right to 
trial by jury in an action under Title V II  of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e, et seq., that:

“ . . . the element of back pay is . . . expressly pro­
vided for under the Act itself . . . Under this sec­
tion, if the court finds illegal employment prac­
tices, one available remedy is reinstatement with 
or without back pay. The demand for back pay 
is not in the nature of a claim for damages, but 
rather is an integral part of the statutory equi­
table remedy, to be determined through the exer­
cise of the court’s discretion, and not by a jury.”

(Cf. Smith v. Hampton Training School for Nurses, 
360 F.2d 577 (4th Cir. 1966) ; Rote also Cheatwood v. 
South Central Bell Telephone <& Telegraph Co., 303 
F.Supp. 754,1969; and Hayes v. Seaboard Coast Line 
Railroad Co., 46 F.R.D. 49, 52-53.)

Similarly in the instant ease, the demand for injunc­
tive relief and damages is an integral part of the stat­
utory equitable remedy contemplated by Congress, 
and likewise is only to be determined by the exercise 
of the court’s discretion—not by jury.

A  similar analysis of Federal judicial interpreta­
tion of the right to jury trial in proceedings under the



19

Fair Labor Standards Act, 29 U.S.C. §§ 216 and 217, is 
also persuasive. Congress, when enacting a remedial 
statute to enforce rights granted thereunder has tradi­
tionally explicitly indicated when the action created is 
to be equitable. Under Section 17 of the Fair Labor 
Standards Act (29 U.S.C. §217), the district courts 
are vested with jurisdiction to restrain violations of the 
Act, including the withholding of the payment of mini­
mum wages and overtime compensation. The nature 
of the action under that provision was held by the court 
to address itself to future violations, and thus, there 
was no right to trial by jury. Wirtz v. Jones, 340 F.2d 
901, 902 (5th Cir. 1965). Note also Wirtz v. Robert 
E. Bob Adair, Inc., 224 F. Supp. 750, (W . D. Ark., 
1963), where the court held that denial of the right to 
trial by jury of a back pay order sought by the Secre­
tary of Labor, suing to enjoin an employer’s withhold­
ing of minimum wages and overtime compensation 
and to enjoin future violations was not violative of the 
Seventh Amendment guarantee.

Section 16 of that Act (29 U.S.C. § 216) provides an 
alternative remedy to the individual employee and 
creates an independent cause of action. I f  the analysis 
of the Court of Appeals is carried to its logical conclu­
sion under Ross v. Bernhard, supra, it is not inconsist­
ent to conclude that the issues of back pay and liqui­
dated damages brought under Section 16 by an indi­
vidual on behalf of himself and others similarly situ­
ated would require a trial by jury on the issues of the 
amount in question. Olearchick v. American Steel 
Foundries, Martin v. Carnegie-Illinois Steel Corp., 
73 F. Supp. 273 (W.D. Pa. 1947) ; Wirtz v. Thompson 
Packers, Inc., 224 F. Supp. 960 (E. D. La. 1963). The 
action under Section 16(b) is in the form of a suit for



20

money judgment, without any requirement that it be 
brought in the form of injunctive relief. Only Sec­
tion 17 speaks to the remedy of injunction.

To that extent, it is the position of the Amicus that 
the analogy of this case to those brought under Section 
17 is a proper one. Both actions are granted to enforce 
rights granted under the statutes and both are ex­
pressly designed to restrain violations. The equitable 
nature of the remedies created is unmistakably clear. 
Nothing under Ross v. Bernhard and the cases cited 
therein requires a different conclusion.

II. Title VIII of Civil Rights Act of 1968 Is A Remedial Stat­
ute To Be Liberally Construed To Effect the Objective 
Sought

The purpose of the Pair Housing Act is clear—to 
enunciate a national policy of fair housing throughout 
the United States and provide a complete remedy to 
private persons whose civil rights have been violated.

Though the Secretary of Housing and Urban Devel­
opment is charged with certain administrative duties 
under the Act to obtain voluntary compliance the 
primary mode of enforcement of the Act is civil ac­
tions by a private citizen seeking redress not only for 
the violation of his own civil rights but also acting “ as 
private attorney general in vindicating a policy that 
Congress declared to be of the highest priority.”  
Trafficante v. Metropolitan Life Insurance Go., 409 
U.S.’ 205, 211.

The Pair Housing Act, Section 814, requires expedi­
ent judicial determination of the claims presented. 
Congress did not enact that provision without care­
ful consideration of the nature of the fundamental



21

right granted and the circumstances of the persons the 
Act was designed to protect. To remove one of the 
many insidious badges of slavery and to guarantee to 
minorities an absolute right to obtain interests in real 
property was clearly the intent of the drafters of this 
legislation. And by and large, racial minority persons 
have resorted to the remedies under the Act much more 
frequently than other groups.10

Jury trials, being inherently cumbersome, expensive 
and complicated, would only erect an obstacle to the 
enforcement of the Act by private citizens, who can ill 
afford the luxury of legal gymnastics respecting a need 
as basic and essential as shelter. The aggrieved private 
citizen who seeks enforcement under Section 812 is 
generally in need of immediate housing accommoda-

10 For fiscal year ending July 30, 1972, the Department of Hous­
ing and Urban Development reported that 2,159 complaints had 
been filed under Title V III of the Fair Housing Act, of which 
approximately 1800 alleged racial discrimination in housing;
The Leadership Council for Metropolitan Open Communities (of 
greater Chicago) reported that since 1969 it has litigated over 200 
suits under the Act on behalf o f minorities. Ninety-five (95) 
percent of those served were Black;

The Justice Department has filed over 149 pattern and practice 
suits under the Act— all but one filed on behalf of racial minorities;

The files o f the N.Y. State Division of Human Rights indicate 
that of a total of 516 complaints filed alleging discrimination in 
housing for the year 1972, 379 were filed by racial minorities.

As the statistics unravel it becomes obvious that the primary 
medium through which minorities assert their rights to equal op­
portunity in housing is under the Fair Housing Act. The na­
ture and extent to which minorities are still subjected to the 
indignities of racial prejudice looms clear. For these beneficiaries 
under the Act, the effect and consequences o f a jury trial under 
Section 812 would be to unduly delay final enforcement of a con­
stitutionally guaranteed right (See Jones v. Mayer Co., supra).



22

tions. The drafters of the Act recognized the urgency 
of that need by providing that a complainant could 
commence a civil action, upon the respondent’s failure 
to voluntarily comply with the Secretary’s efforts to 
correct the alleged discriminatory housing practice 30 
days after such failure. I f Section 812 is read to 
entitle a respondent in a civil action to a jury trial, 
injunctive relief depending on the hack log on a jury 
calendar will not afford the claimant the adequate 
remedy contemplated by the Act. With adequate hous­
ing accommodations becoming increasingly more diffi­
cult to obtain, the claimant cannot afford the luxury of 
time to have his rights adjudicated and a remedy de­
creed. I f  immediate determination is not made, the 
aggrieved party will generally have no alternative hut 
to seek alternative housing accommodations and to 
forego injunctive relief.

Congress further indicated it contemplated precisely 
such a problem by enacting Section 814 requiring ex­
peditious resolution of a claim. To interpret the Act as 
requiring otherwise will afford the intended benefici­
aries, at the most, nominal relief in the form of special 
or punitive damages which can in no way compensate 
for the indignity and humiliation suffered as a result 
of a violation. The attendant effect of such a require­
ment would be to foster a nullification of the primary 
thrust and purpose of the statute and to create an un­
just and absurd result. General rules of statutory 
construction require that remedial statutes be liberally 
construed to accomplish their purpose, here the afford­
ing of a private remedy to persons injured by a wrong­
ful act.

Civil rights statutes especially should be construed 
in such a fashion in order to carry out the purpose



23

of Congress to eliminate inconvenience, unfairness, and 
humiliation. United States v. Johnson Lake Inc., 312 
F. Supp. 1376; Civil Rights Act, 1964, Section 201, 42 
TT.S.C. 2000(a).

CONCLUSION

It is respectfully submitted that the decision of the 
Court of Appeals should he reversed and the District 
Court’s order and opinion of May 19, 1970, be rein­
stated.

N o r m a n  C. A m a k e r  
M o ll ie  W. R e a l  
Attorneys for The National 

Committee Against Discrimi­
nation In Housing 
1425 H Street, N.W., Ste. 410 
Washington, D.C. 20005 
(202) 783-8150



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