Warth v. Selden Brief Amicus Curiae

    IN-THE

October Term,' 197'

’
o. 73-2024

obert W arth , et al ., Petitioners,

On Writ of CeriiorarMo the United States Court of Appeals
for the

S i i l S

j ; BRIEF AMICUS CURIAE OF, THE NATIONAL5 
r VpOMMITTEE AGAINST \ DISCRIMINATION *v .P:: 'H. •.. __ _________ •,, > •

Washington, D.C,

ntsn

[arjcie-E . Sloane 
.RTHUB D. W olf 
Attorneys, for the Natio 

Committee Against 
^iDiscr^jimition

4;1425 H. Street, N fW 'Ste. & &  
" Washington, I).vQ|l2O0O^^

(202) 783-8150*''

A dams Pr in tin g  I wc., ^Washington, D. C.



I^DEX
!. ' Page

I nterest  of th e  A m ic u s  C uriae  ................................ - . . .  1I
Q uestion  P resented  ......... ' ............................ ................. ; . .  | 3

A r g u m e n t .........................................................................................  3

I ntroduction  ......................    3

1. The Plaintiffs are Injured in F a c t .................  4
2. Plaintiffs Have Standing Independent of Devel­

opers and Landowners ........................................ 13
3. An Effective Remedy Is Available.....................  17
4. This Court’s Recent Decisions Denying Stand­

ing Are Inapplicable ............................................ 19

C o n clu sio n  ..................................................................................... 21

TABLE OF AUTHORITIES
C a s e s :

Allee v. Medrano, 94 S.Ct. 2191 (1974) ......................... 12
Association of Data Processing Service Organizations,

Inc. v. Camp, 397 U.S. 150 (1970) .....................3,7,20
Banks v. Perk, 341 F.Sup.. 1175 (N.D. Ohio 1972), 

aff’d in relevant part, 473 F.2d 910 (6th Cir. 1973) 15
Barloiv v. Collins, 397 U.S. 159 (1970) ...................».. .9 10
Buchanan v. Warley, 245 U.S. 60 (1917) .................. ’ 12
Brown v. Board of Education, 347 U.S. 483 (1954)___ 20
CMHA v. City of Cleveland,,342 F.Supp. 250 (N.D.

Ohio 1972), aff’d sub nom. CMHA v. Harmddy,
474 F.2d 1102 (6th Cir. 1973) .......................... \ . . 16

City of Kenosha V. Bruno, 412 U.S. 507 (1973) .......... 14
Cole v. Housing Authority of the City of Newport, 435

F.2d 807 (1st Cir. 1970} ........... ............................ 15
Conley v. Gibson, 355 U.S. 41 (1957) ' . ........................ 4
Cornelius v. City of Parma, 374 F.Supp. 730 (N.D. 

Ohio); vacated and remanded, — F.2d — No. ;74-
1401 (6th Cir. Oct. 22, 1974) .................r . . . . .  .15 16

Crow v. Brown, 332 F.Supp. 382 (N.D. Ga. 1971),' aff’d 
457 F.2d 788 (5th Cir. 1972) ...................... 15



r
11 Index Continued

. .  Page
Curtis v. Loether, 415 U.S. 189 (1974) ........... ........... 2
Dailey v. City of Lawton, 425 F.2d 1037 (10th Cir.

1970) ..................................................................  2, 13, 15
Doe -v. Bolton, 410 U.S. 179 (1973) . . ........................ 13,14
Ellis v. Carter, 291 F:2d 270 (9th Cir. 1961 )...'..........  7
England v. Louisiana State Board of Medical Ex­

aminers, 263 F.2d 661 (5th Cir.), cert, denied, 359
U.S. 1010 (1959) .......................................................  7

Flast v, Cohen, 392 U.S. 83 (1968) ..............................  20
Garrett v. City of Hamtramck, 335 F.Supp. 16 (E.D. 

Mich. 1971), supplemental order, 357 F. Supp.
925 (1973) ..................................................................  19

Gautreaux v. Chicago Housing Authority, 265 F.Supp.
582 (N.D. 111. 1967) ............. : .................................  15

In re Girsli, 437 Pa. 237, 263 A.2d 395 (1970).............  17
Green v.County School Board, 391 U.S. 430 (1968)... 18
Janies v. Valtierra, 402 U.S. 137 (1971) ....................... 14
Jenkins v. McKeithen, 395 U.S. 411 (1969) ........... 4,17,18
Jones v. Mayer, 392‘ U.S. 409 (1968) . . .'....................... 2
Kennedy Park Homes A ss’n v. City of Lackawanna,

436 F.2d 108 (2d Cir. 1970), cert, denied, 401 U.S.
1010 (1971) ................. ...................................S . . . .2,15

King v. New Rochelle Municipal Housing Authority,
442 F.2d 646 (2d Cir.), cert, denied, 404 U.S. 863
(1971) ................... :P................................................. 15

Laird v. Tatum, 40S U.S. 1 (1972) ..................... 7,14, 17,19
Lane v. Wilson, 307 U.S. 268 (1939)'............................  12
Linda R.S. v. Richard D., 410 U.S. 614 (1973).............  19
Louisiana v. United States, 380 U.S. 145 (1965).... 18,19 
Louisville & Nashville R.R, Co. v. Mottley, 211 U.S. 149

(1908)........................................................................: 14
Loving v. Virginia, 388 U.S. 1 (1967)............................  12
Morales v. Haines, 486. F.2d 880 (7th Cir. 1973).........  15
NAACP v. Button, 371 U.S. 415 (1963) .................A . 4
O’Shea v. Littleton, 414 U.S. 488 (1974) ..................... 19
Park View Heights Corp. v. City of Black Jack, 467

■F.2d 1208 (8th Cir. 1972) ..................................... 13, 15
Public Affairs Associates v. Rickover, 369 U.S. I l l

(1962) ............. A . . . ' . . . . . ' . .....................................  18
Ranjel v. City of Lansing, 417 F.2d 321 (6th Cir. 1969),

cert, denied, 397 U.‘S. 980 (1970) ............................  15
Reitman v. Mulkey, 387 U.S. 369 (1969) ............... . . . . . .  2

Index < Continued in
i

! Page
Roe v. Wade, 410 U.S. 113^(1973) ........................13 14
SASSO v. City of Union City, 424 F.2d 291 (9th Cir

1970) .................................................  . \ 2
Scheuer v. Rhodes, 416 U.S. 232 (1974) . ’. • ’.. ’. ’ ’ [ '4 18
Schlesinger v. Reservists Committee to Stop the War

94 S.Ct, 2925 (1974).............................................  19 °0
Sierra Club v. Morton, 405 U.S. 727 (1972) . . .-.4, 10, 19, 20 
Sisters of Providence v. City of Evanston, 335 F Supp ’ ,

396 (N.D. 111. 1971) .......................... ................15
Spomer v. Littleton, 414 U.S. 415 (1974)........... . 10
Swann v. Charlotte-Mecklenburg Board of Education

402 U.S. 1 (1971) . . . . : ' ........................................... 18
Trafficante v. Metropolitan Life Insurance Co. 409

U.S. 205 (1972) ............................................... ! . . . . 9  10
United Farmworkers v. City of Delray Beach, 493 F.2d

779 (5th Cir. 1974) . .'...............................................  15
United States v. Richardson, 94 S.Ct. 2940 (1974) 17 19 20 
United States v. SCRAP, 412 U.S. 669 (1973) ....... A, 7, 8,

Worth v. S el din, 495 F.2d 1187 (1974) ........... 1, 5, 6, "u’ll^
12 13 17

Willingham v. Morgan, 395 U.S. 402 (1969) ........... ’.. ’ 10

C o n stitu tio n  and  S ta tu tes  :

United States Constitution, Fourteenth Amendment.. 
Federal Fair Housing Act [42 U.S.C. 3601-3619].... 
Federal Rules of Civil Procedure ;

7
10

Rule 12(b) ...................................................  7
Rule 15 .................................................    in

United States Code A
28 U.S.C. 1653 ............ ' - in
42 U.S.C. 1981 .........   •"‘T in
42 U.S.C. 1982 .................  A in
42 U.S.C. 1983 .............  ................................ 7 10 on
42 U.S.C. 3610.........  . ..............................  ’ ’ jo

M is c e l l a n y : •

Moskowitz, Standing of Future Residents in Tlx-
ctusionary Zoning Cases, 6 Akron L. Rev. 189 
(1973) ........................................................................ -̂ 7

United States Bureau of the Census, Census of Pop­
ulation: 1970 .......................................  3



I

*

1

Aa
•*T

*

I?} THE

& u p r r m r  (d m trt  n f  t lw  i lu tte ft  B t a t i s
O ctober T e r m , 1974-

No. 73-2024

R obert W a r t h , et  a l ., Petitioners, 
v.

I ra S eld in , et  a l .

On Wrii of Cerfiorari io Ihe United States Court of Appeals 
for the Second Circuit

BRIEF AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

With the consent of the parties, the National Committee 
Against Discrimination in Housing, Inc. (NCDH) submits 
this brief amicus curiae in support of the petitioners, urg­
ing reversal of the judgment of the Court of Appeals for 
the Second Circuit. That decision, rendered on April 18, 
1974, is reported at 495 F.2d 1187. It affirmed an order of 
the district court dismissing the complaint on the pleadings 
without a full evidentiary hearing. v

NCDH was founded in 1950 with the objectives of estab­
lishing and implementing programs to eliminate racial



2
.

segregation and discrimination in housing and to broaden 
housing opportunities for minority group members, es­
pecially those of lower income. Since its inception, NCDH 
has carried out affirmative programs of research and edu­
cation in the area of equal housing opportunity.

>
NCDH has complemented its research and education ef­

forts with a vigorous legal program aimed at securing equal 
housing opportunity guaranteed under state and federal 
law. ;It has initiated litigation and participated as amicus 
curiae in numerous cases involving challenges to discrim­
inatory housing practices and exclusionary land use con­
trols. Among the important recent cases initiated by 
NCDH are Dailey v. City of Lawton, 425 F.2d 1037 (10th 
Cir. 1970), and SASSO v. City of Union City, 424 F.2d 
291 (9th Cir. 1970). Among the important recent cases in 
which NCDH has‘participated as amicus curiae are Reit- 
man v. MulJcey, 387 U.S. 369 (1967), Jones v. Mayer, 392 
U.S. 409 (1968), Curtis v. Loether, 415 U.S. ^89 '{1974), 
and Kennedy Park Homes A ss’n v. City of Lackawanna, 
436 F.2d 108 (2d Cir. .1970), cert.-denied, 401 U.S. 1010 
(1971). U

In the course of its work, NCDH has analyzed the im­
pact of suburban zoning and other land use policies and 
practices on housing, job, and educational opportunities 
for.lower income minorities in the nation’s metropolitan 
areas. We have found that, in many instances, suburban 
municipalities have exercised their zoning and other land 
use powers in a manner to isolate themselves from the 
problems of the metropolitan areas of which they are a part 
and to exclude lower income minorities.

Consequently, the. question whether lower income mi­
norities have standing to challenge such discriminatory 
land use practices is of the highest importance. The res­
olution of this issue by the Court will bear significantly 
on the efforts of NCDH to assist lower income minorities

in securing their legally protected right to equal housing 
opportunity, and to reve/se the accelerating racial and 
economic polarization in metropolitan areas.1 \

■ QUESTION PRESENTED

Whether lower income minority persons who seek to re­
side in a community have standing to challenge1 racially 
discriminatory land use practices by that municipality which 
block the construction of housing in which they can live.

ARGUMENT
Lower Income Minority Persons Have Standing To Challenge 

Racially Discriminatory Land Use Practices by a Munici­
pality Which Prevent Them from Residing in that Com­
munity.

Introduction

The court of appeals affirmed the dismissal of the com­
plaint solely on the ground that the plaintiffs lacked stand­
ing to maintain the action. In reciting the familiar two­
pronged test of standing announced in Association of Data 
Processing Service Organizations, Inc. v. Camp, 397 U.S. 
150, 152-53 (1970), it held that the complaint in this case 
did not sufficiently allege “ injury in fact.’ ’ The court of 
appeals believed that the plaintiffs did not alleges “ per­
sonal stake”  in the outcome of the litigation to satisfy the 
standing requirement.

NCDH contends that the court of appeals, in denying 
these plaintiffs standing, misapplied some and ignored 
other decisions of this Court. We argue that whep the al­
legations of the complaint are placed against a proper 
reading of the applicable precedents, plaintiffs’ harm will 
be shown sufficiently for standing purposes. In light of

In Monroe County, New York, of which the defendant Town 
of Penfield is a part, more than 95 percent of the black population 
resides in the central city of Rochester, and barely .01 percent 
lives in Penfield. United States Bureau of the Census, Census of 
Population: 1970.

; 3
i



4

the concerns of NCDH set forth above, we focus our at- 
tentiotf on the alleged injury to the lower income, minority
plaintiffs.2

Since the lower courts dismissed the complaint at the 
pleading stage, before an evidentiary hearing was held, 
this Court is obliged, to undertake the same limited inquiry. 
Consequently, the sfettled rules for construing complaints 
at this early stage of the proceeding are fully applicable.

.. . For the purposes of a motion to dismiss, the. material
allegations of the complaint are taken as admitted . . . .

- And°,te complaint is to be liberally construed m favor 
of plaintiff. Jenkins v. M ch eith en , 39o U.b. 411, 421
(1969).

Accord, Scheuer v. Rhodes, 416 TJ.S. 232 (1974); United 
States v. SCRAP, 412 U.S. 669 (1973).

This Court has - at least since the inception of the Fed­
eral Rules of Civil Procedure, admonished strongly against 
dismissing complaints “ unless it appears beyond doubt 
that the plaintiff can prove no set of facts in suppoit o 
his claim which would entitle him to relief. on ey 
Gibson, 355 U.S. 41, 4o-46 (1957).

1. The Plaintiffs Are Injured in Fact

Petitioners Broadnax, Reyes, and Sinkler are lower in­
come minority residents of Rochester. These plaintiffs 
have been unable, because of their race and economic status, 
to locate housing in Penfield, a suburb of Rochester. They 
allege that the absence of dwellings they can afford is a

- T W e  we argue primarily for the standing of the lower income 
minority plaintiffs, we maintain that the court of appeals errone­
ously applied this Court’s decisions m denying standing to 
organizational plaintiffs. -“ It is-clear that an organization whose 
members are injured may represent those members in a proceedi g 
for judicial review.”  . Sierra Club v. Morton, 40o U.S. 727 739 
m i l t  acoord, NAACP  v. Button, 371 U.S. 415 (1963) ; United 
States v. SCRAP, 412 U.S. 669 (1973).

result of the defendants’ unlawful conduct. The petitioners 
claim that the defendants, 'officials of Penfield, discriminate 
against them through maintenance and administration of 
their zoning and other land use policies? and practices.

f
Notwithstanding the plaintiffs’ allegations that the de­

fendants’ practices are unlawful both on their face and 
as applied, the court of appeals focused almost exclusively 
on the facial content of the zoning ordinance.3 It largely 
ignored the plaintiffs’ explicit allegations that the zoning 
law has been improperly administered. The lower court 
opinion initially noted, then ignored, the allegation of un­
lawful application of the 'ordinance. The plaintiffs claim 
that the defendants, on several occasions, refused to ap­
prove plans Tor the construction of low and moderate in­
come housing these minority petitioners can afford.

The complaint alleged that the defendants have ‘ admin­
istered the provisions of the said zoning ordinance by re­
fusing to grant variances, building permits, and by use of 
special permit procedures and other devices so as to effect 
and propagate the exclusionary and discriminatory pol­
icy, plan and/or scheme.”  Complaint paragraph Six­
teenth; see also paragraph Eighteenth. As the court 
of appeals expressly noted: “ Appellants’ complaint goes 
beyond the fact of the town’s zoning laws and further 
alleges certain affirmative acts . . . .”  495 F.2d at 1189. As 
the court also noted, these affirmative acts involved block­
ing the construction of a lumber of proposals for multi­
family housing in Penfield. These included at least one 
proposed project for what the court characterized as “  ‘ low 
moderate income' housing’ ”  ibid, precisely the kind of

3 The irony of the defendants’ contention that these non-resident 
plaintiffs have no interest in Penfield’s land use practices is that 
the zoning ordinance itself recognizes that concern. In the pro­
visions for “ planned unit development,”  the ordinance requires 
the builder to consider the needs of “ existing and potential town 
residents at all economic levels.”  Penfield Zoning Ordinance, 
§29-1120.B.(l) (emphasis added).

. 5



6

honsing for which plaintiffs were potential residents. See 
Complaiftt paragraph Fifth; Complaint 1 paragraph Sev­
enth. “But in its discussion of the standing of the indi­
vidual plaintiffs, the court ignored these “ affirmative acts”  
and focused on the zoning law alone. 495 F.2d at 1191-93.

We contend that even under an analysis limited to the 
facial content of the’ordinance, the plaintiffs allege injury 
in at least two respects. First, the ordinance severely 
restricts certain types of housing which would be in the 
price range these lower income minority persons can af­
ford. :For example, while the ordinance allows mobile home 
parks (but not mobile homes on individual lots) and multi­
family dwelling units, it limits such housing to a fraction 
of the land available for residential construction. Less 
than one percent of all vacant land in Penfield, the plain­
tiffs allege, is zoned for this type of housing. Because of 
the absence of land for apartments and mobile homes, 
builders are unable to construct housing these plaintiffs 
can afford. *•

^ .A second source of injury to these lower income minority 
plaintiffs, from the face-of the ordinance, arises out of the 
provisions governing the construction of single-family de­
tached housing. The plaintiffs allege that 98 percent of 
all the vacant land in Penfield is zoned in this manner. 
Contractors cannot build housing for these plaintiffs on 
that land, however, because the requirements imposed by 
the ordinance raise the cost beyond that which these plain­
tiffs can afford. By imposing requirements relating to 
such factors as large' lot sizes, minimum floor space, and 
density, the ordinance precludes the construction of hous­
ing which these plaintiffs can purchase.

Moreover, the plaintiffs’ claim is based not only on the 
maintenance of Penfield’s zoning law, but, as the lower 
court noted, on its application to block specific proposals

7

for housing in which they could live. 495 F.2d at 1189. 
Once the nature of the defendants’ conduct is fully dis­
closed by an examination q¥ the complaint and accompany­
ing affidavits,4 the direct injury to the plaintiffs becomes 
clear. Their standing to challenge these unlawful actions 
follows, if the decisions of this Court are accorded their 
proper significance.

The two-pronged test of standing set forth in the Camp 
and SCRAP cases, supra, is surely met here. The interest 
plaintiffs seek to protect—the right to equal housing op­
portunity without discrimination—is clearly within the 
zone of interests protected by 42 U.S.C. 1981, 1982, and 
1983, as well as the Fourteenth Amendment to the United 
States Constitution. The court of appeals apparently be­
lieved that the plaintiffs satisfied that requirement as it 
did not discuss the point.

The second part of the test—whether injury in fact is 
alleged—is also satisfied by the allegations in the complaint 
and the facts in the affidavits. The plaintiffs contend they 
have been harmed because the defendants’ conduct has 
prevented the construction of housing they can afford. The 
injurious result has adversely affected the minority plain­
tiffs in several ways: denial of decent, safe, and sanitary

4 It is not clear whether the presence of plaintiffs’ affidavits con­
verts defendants’ motion to dismiss into a motion for summary 
judgment under Rule 12(b), Fed.R.Civ.P. We believe it does not. 
See Laird v. Tatum, 40S U.S. 1, 2-3 (1972). But even if the case 
is considerd in the posture of a motion for summary judgment, 
the district court is still obligated to treat the well-pleaded alle­
gations as true (in the absence of contradictory affidavits). Cf. 
England v. Louisiana State Board of Medical Examiners, 263 F.2d 
661, 674 (5th Cir.), cert, deniedy 359 U.S. 1010 (1959). Of course, 
plaintiffs ’ complaint should be evaluated factually as supplemented 
by their affidavits. Ellis v. Carter, 291 F.2d 270, 275 ’ (9th Cir. 
1961).



8

housing;5 denial of employment opportunities; denial of 
quality^ucation for their children; and denial of the right 
to choose where to live. Each of these deleterious effects, 
standing alone, would suffice to meet the “ injury in fact”  
test of standing. In United States v. SCRAP, supra at 
688; where the Supreme Court sustained plaintiffs’ stand­
ing, the injury was “ far less direct and perceptible.”

In United States v. SCRAP, supra, an organization com­
posed o f law student-environmentalists sued to restrain 
the ‘Interstate Commerce Commission from raising rail­
road freight' rates. They alleged that the increase in 
charged would decrease the use of the railroads for ship­
ping discarded materials for recycling. This, in turn, 
would cause manufacturers to produce more non-recyclable 
commodities. The result would have an adverse impact 
on the environment, the plaintiffs contended, because more 
natural resources would be used and more litter would 
be strewn in public places. f

This Court held that, so long as the plaintiffs had alleged 
a “ specific and perceptible harm,”  they had standing to 
challenge the rate increase. It made no difference that 
the harm generated by- the rate hike traveled an “ atten-

5 Plaintiff Broadnax, for example, described the conditions un­
der which she and her family are forced to live in the inner city 
of Rochester: “ The wiring in the house is so old and defective
that'there is some electrical short in the apartment at least e\ery 
two weeks which requires our resetting fuses. The house founda­
tion is now crumbling very badly. Since the foundation has started 
crumbling, there have been mice and rats coming into the house. 
The mice and rat infestation is now so bad that they come through 
the heating vents into the rooms of the apartment itself. I have 
already caught two mice in the children’s bed. To have rats and 
mice infesting the house causes great anxiety among the children. 
One way that I try to reduce the'danger of my children getting 
bitten is to leave the light on in the bedroom all night. The 
children are now afraid*to go to sleep unless there is a light on 
in the room.’ ’ .Broadnax Affidavit, paragraph 9.

' 9(
uated line of causation to tlie eventual injury.”  Id. at 688. 
The important point was 'that the plaintiffs had alleged 
“ injury in fact,”  and wer£ prepared to prove it. In the 
opinion below, the court of appeals ne^er referred to the 
SCRAP case, an omission which underscores its erroneous 
conclusion.

In Rarlow v. Collins, 397 U.S. 159 (1970), tenant farmers 
sued to enjoin a Department of Agriculture regulation 
which allowed federal crop assistance subsidies to be as­
signed (prior to payment to the tenant farmer) to a land­
lord for rent. The tenant farmers argued that the regula­
tion would cause them injury in fact in the following way: 
If future federal payments could be assigned for rent, 
landlords would require that it be done as a condition to 
tilling their soil.

Thus, the tenant farmers, in the pre-harvest period, would 
be without any cash to purchase necessities, such as food 
and clothing. They would then have to go to the landlord 
for these items, or for credit to buy such goods. This 
process would make the tenant farmers totally dependent 
on the landlord, and thus, they would lose whatever eco­
nomic independence they had before the promulgation of 
the regulation.

The line of reasoning from the alleged illegal action to 
the ultimate injury to the plaintiffs in Barlow follows the 
same sinuous yet deliberate cqurse as in SCRAP. In each 
of these cases, the harm was perceptible but not direct, 
cognizable but not obvious. But neither directness nor 
magnitude has been required under the decisions of this 
Court.

In Trafficante v. Metropolitan Life Insurance Co., 409 
U.S. 205 (1972), white and black residents of a segregated 
apartment building sued to enjoin racial discrimination 
practiced by the owner. They alleged that the manage­
ment’s policy of excluding minorities adversely affected



10

their opportunities to meet and associate with members 
of minonity groups. This injury, they asserted, was suf­
ficient fb confer standing' on them to attack the defendants’ 
racially exclusionary conduct. Again the injury to the 
plaintiffs was several steps removed from the allegedly 
illegal practices. Nonetheless, this Court sustained the 
standing of the residents to maintain the action.

Although the challenge in the instant case is not to pri­
vate discrimination under 42 U.S.C. 3610, as in Trafficante, 
but rather to governmental discrimination under 42 U.S.C.
1981, 1982, and 1983, the applicable criteria for determining
standing are the same. See United States v. SCRAP, su­
pra at 689 n.14. Where 42 U.S.C. 3610(a) uses the phrase 
“ any person who claims to have been injured,”  42 U.S.C. 
1983, for example, uses the words “ the party injured.”  
This phrase in Section 19S3 should, for standing purposes, 
be construed as broadly as the nearly identical language 
in Section 3610 was'construed in T rafficante. Both statutes 
are employed by injured plaintiffs in their roles as “ private 
attorneys general.”  Trafficante, supra at 211. 'Thus,
here, as in Trafficante, Barloiv, and SCRAP, the issue is 
one of statutory, not constitutional -standing.6

In the present appeal, the alleged injury to the plain­
tiffs caused by defendants’ maintenance of their zoning 
scheme is more substantial and far more direct than that 
found sufficient in SCRAP, Barloiv, and Trafficante. Pe­

6 It is noted that, while no claim is made here under the Federal 
Fair Housing Act, as in Trafficante, this Court is authorized to 
cure “ [defective allegations of.jurisdiction,”  28 U.S.C. 1653; cf. 
'Willingham v. Morgan, 395 U.S. 402, 407 n.3 (19G9), if the Court 
believes the plaintiffs do not have standing under 42 U.S.C. 1981,
1982, and .1983. Since standing is jurisdictional, this Court may 
correct the inadvertently omitted reference to 42 U.S.C. 3601 et 
seq., or it may vacate the judgment and remand the case so that 
the plaintiffs may seek leave to amend the' complaint. Rule 15, 
Fed.R.Civ.P.; Sierra Club, v. Morion, 405 U.S. 727, 735 n.8 (1972) ; 
see Spomer v. Littleton, 414 U.S. 415 (1974).

11

titioners Broadnax, Sinklejr, and Reyes are lower income 
minority persons who seek decent housing and the decent 
living environment that Penfield affords. As the court of 
appeals correctly pointed out, they have no interest in land 
within Penfield. 495 F.2d at 1191. But that is the essence 
of their complaint—that the defeqdants’ zoning scheme 
prevents them from acquiring an interest in land, either 
by purchase or lease, by excluding housing in which they 
can live. Thus even under an analysis limited to the im­
pact of the zoning law alone, the line of causation between 
the defendants’ conduct and the injury to the plaintiffs is 
clear and direct, not “ attenuated”  as it was in SCRAP 
(where this Court nonetheless upheld plaintiffs’ standing).

Further, imthe instant case, the injury to plaintiffs is 
caused not merely by the maintenance of zoning laws, but, 
as the lower court expressly recognized in its statement 
of the facts, by “ affirmative acts”  blocking proposals for 
the construction of multifamily housing in which they were 
potential residents. 495 F.2d at 1189. The court contended, 
however: “ In no case do appellants allege any involve­
ment in these proposals.”  Ibid. It is difficult to conceive
how these plaintiffs—lower income minority persons__
could have alleged any closer involvement than they al­
ready have. Their involvement, according to the complaint, 
lies in the fact that they are potential residents of low and 
moderate income housing, and the injury defendants cause 
them lies in the exclusion of such housing from Penfield 
by means, not only of their ^maintenance of zoning laws, 
but also b} affirmative acts”  blocking specific p'rojects.

As a direct result of defendants’ conduct, these plain­
tiffs are unable to acquire land, to lease an apartment, or 
to purchase a home within the municipal borders, condi­
tions which the court of appeals suggested were essential 
elements for standing. 495 F.2d at 1191. If the defendants 
explicitly prohibited minorities from living in their town, 
non-resident blacks or hispanics wmuld surely have stand-



12

ing to challenge that ordinance. See Loving v. Virginia,
' 388 U,& 1 (1967); cf. Buchanan v. Warley, 245 U.S. 60

(1917). Here, the defendants accomplish the same result 
somewhat more subtly than by use of express language 
imposing racial and ethnic disabilities. Federal proscrip­
tions against exclusionary devices nullify “ sophisticated 
as well as simple-minded modes of discrimination.”  Lane 
v. Wilson, 307 U.S. 268, 275 (1939).

It would be a harsh rule of standing which required, as 
■•■the court of appeals suggests, that these plaintiffs must 
first live im Penfield before they can challenge land use 
practices which exclude them. 495 F.2d at 1191. It is de­
fendants’ alleged discriminatory conduct, not the plain- 

' tiffs’ choice, which prevents them from residing in the com­
munity. If physical presence in a municipality were an 
essential element of standing, then the ability of injured 
non-residents to phallenge unlawful land use practices 
would be committed to the sole discretion of the offending 
party. A community which successfully excludes all lower 
income minorities from its borders could effectively insu­
late itself from legal attack. In short, the most egregious 
violations would be the least likely to be remedied.

Just last May, this Court confronted a similar contention 
and rejected it. In Allee v. Medrano, 94 S. Ct. 2191 (1974), 
union organizers brought suit to enjoin the alleged harass­
ment of their activities by public officials. The defendants 
argued that the case was not justiciable (moot) because the 
plaintiffs had ceased their organizational efforts. This 
Court rejected that argument because the plaintiffs “ aban­
doned their efforts as a result of the very harassment they 
sought to restrain by this suit.”  Id. at 2197. That is pre­
cisely the point here. Plaintiffs in the instant case are 
unable to:live in Penfield because of defendants’ discrimi­
natory conduct which plaintiffs seek to' restrain by this suit.

13

2. Plaintiffs Have Standing; Independent of
Developers and Landowifers.

t
The court of appeals illso indicated that the plaintiffs 

might have standing if they joined with landowners or con­
tractors in challenging defendants’ practices. 495 F.2d 
1191-92.7 In- other words, according to the lower court, 
even if the defendants’ alleged discriminatory conduct has 
directly prevented the construction of housing, these low 
and moderate income minority plaintiffs cannot challenge 
municipal action which effectively excludes them unless the 
developer or the property owner is also a plaintiff. This 
“ piggy-back”  theory has ho basis in precedent or reason.

In Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 
410 U.S. 179'(1973), this Court held that women, who had 
once been pregnant, could challenge abortion statutes which 
prevented them at the time from terminating their preg­
nancies. The anti-abortion laws in issue did not impose 
any penalty upon a woman who underwent an abortion. 
And clearly a woman needs the aid of others (physicians, 
nurses, etc.) to terminate a pregnancy.

Xonetheless, this Court held that such women have stand­
ing, and did not require attending physicians or nurses 
to join with them in challenging a statute which criminal­
ized only the conduct of the attendants. Their- position 
with respect to the abortion statute is precisely the same 
as the minority plaintiffs here who seek housing in Pen- 
field. In both cases, the plaiintiffs need the assistance of 
others in order to secure their rights. Just as the women 
in Wade and Bolton needed the assistance of members of 
the medical profession, so the plaintiffs here need the as-

7 Citing Park View Heights Carp. v. City of Black Jack, 467 
F.2d 1208 (8th Cir. 1972), and Dailey v. City of Lawton, 425 F.2d 
1037 (10th Cir. 1970), the court said: “ In both cases, the Court per­
mitted potential residents of the proposed projects to join [with 
the developers] as plaintiffs.”  495 F.2d at 1192.



14

sistance of builders or landowners to secure decent bousing 
in Penf&ld. The womenin Wade and Bolton were accorded 
standing; so should' these plaintiffs here.

Similarly, in James v. Valtierra, 402 U.S. 137 (1971), 
low income persons challenged, on its face, a California 
referendum provision which they claimed prevented the 
construction of housing they could afford. At the time 
suit was instituted, no project was under consideration nor 
were any landowners plaintiffs in the litigation.8 In enter­
taining the’ suit, this Court was not disturbed because a 
builder did not join with the low income plaintiffs in chal­
lenging the referendum procedure which purportedly ex­
cluded them.9 Nor did the Court reject the suit because 
of the absence of a viable project whose construction was 
adversely affected.10

Granting such independent standing to lower income 
minorities also hjis sound legal support in numerous 
decisions by lower federal courts. They have consistently
____  t

8 Although a potential housing facilitator, the puttie housing 
authority, was a nominal defendant in Valtierra, this Court should 
not decide the question of standing ‘ ‘ on- the basis of the identity 
of the parties named as defendants in the complaint.”  Laird, v. 
Tatum, 408 U.S. 1, 10 n.6 (1972).

9 Although the standing of the plaintiffs was not directly at issue 
in Valtierra, the decision has precedential value. Standing is a 
jurisdictional concept, and federal courts have an affirmative ob­
ligation in each case to insure that their jurisdiction is 
properly invoked. “  [I] t is the duty of this court to see to 
it that the jurisdiction [of lower federal courts], which is 
defined and limited by statute, is not exceeded.” , Louis­
ville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908); accord, 
City of Kenosha v. Bruno, 412 U.S. 507 (1973). Thus a precedent 
used for jurisdictional purposes has greater weight than if it were 
employed for other reasons, even though the precise jurisdictional 
issue was not expressly discussed by the Court.

10 It is true that, in Valtierra, the referendum mechanism had 
been used earlier to block low income housing projects. But that 
fact is present here also as these plaintiffs allege that Penfield 
has turned down several such projects in the past.

15

entertained suits in which louver income minorities who are 
potential residents of a community or a proposed project 
have challenged municipal |and use practices which pre­
vent, impede, or interfere with the construction of housing 
they can afford. In Park View Heights Corp. v. City of 
Black Jack, 467 F.2d 1208 (8th Cir. 1972) and Sisters of 
Providence v. City of Evanston, 335 F.Supp. 396 (N.D. 111. 
1971), several sets of plaintiffs, including lower income 
minority potential residents of subsidized housing, chal­
lenged allegedly discriminatory land use practices. The 
courts, after examining each class of plaintiffs, held that 
the case was justiciable as to each, emphasizing the injury 
to the lower income minorities. 11

In Banks v. Perk, 341 F.Supp. 1175 (N.D. Ohio 1972) 
aff’d in relevant part, 473 F.2d 910 (6th Cir. 1973), lower 
income minority prospective residents were the only plain­
tiffs in the case. The builder whose project was blocked 
by municipal conduct was conspicuous by his absence. 
Nonetheless, the individual minority plaintiffs had standing 
to challenge the discriminatory conduct.

And in the recent case of Cornelius v. City of Parma, 
374 F. Supp. 730 (N.D. Ohio 1974), vacated and remanded, 
— F.2d — No. 74-1401 (6th Cir. Oct. 22, 1974), where, 
again, the builder was not a plaintiff, lower income

11 See also United Farmworkers v. City of Delray Beach, 493 
F.2d 779 (5th Cir. 1974) ; Morales v. Haines, 486 F.2d 880 (7th 
Cir. 1973) ; King v. New Rochelle Municipal Housing Authority, 
442 F.2d 646 (2d Cir. 1971), cert, denied, 404 U.S. 863 (1971) ; 
Dailey v. City of Laivton, 425 F.2d 1037 (10th Cir. 1970) ; Ken­
nedy Park Homes Ass’ n v. City of Lackawanna, 436 F.2d 108 (2d 
Cir. 1970), cert, denied, 401 UiS. 1010 (1971); Cole v. Housing 
Authority, 435 F.2d 807 (1st Cir. 1970) ; Ranjel v. City of Lansing, 
417 F.2d 321 (6th Cir. 1969), cert, denied, 397 U.S. 980 (1970); 
Crow v. Brown, 332 F. Supp. 382 (N.D. Ga. 1971), aff’d  457 F.2d 
788 (5th Cir. 1972) ; Gautreaux v. Chicago Housing Authority, 265 
F. Supp. 582 (N.D. 111. 1967).



16

minority non-residents sued to enjoin allegedly discrimi­
natory Jg.nd use practices, both on their face and as 
applied' of a Cleveland, Ohio suburban community. The 
district court dismissed the complaint on grounds, inter 
alia, that the builder was not itself contesting Parma’s 
conduct. 374 F. Supp. at 736. The court of appeals 
vacated the judgment because “ the complaint appears to 
state a cause of action alleging racial discrimination . . .”  
and remanded the case for trial. 12 This, we contend, is 
what the court of appeals in the instant case should have 
done and what this Court should do to correct the lower 
court’s: basic <error.

Granting independent standing to lower income 
minorities to attack municipal land use practices which 
exclude them also makes eminently good practical sense. 
After all, they are “ the real losers”  and “ the true parties 
in interest”  when governmental action, as in this case, 
prevents their obtaining better housing. CMHA v. City 
of Cleveland, 342 F. Supp. 250, 256 (N.D. Ohio 1972) gaff’d 
sub nom. CMHA v. Harmody, 474 F.2d 1102 (6th Qir. 1973). 
If future tenants or residents could only establish the 
justiciability of their claim derivately through housing 
sponsors or landowners/' a great deal of discriminatory 
behavior by government would forever go unchallenged. 
Contractors, for ■ example, are reluctant to bear the 
financial burdens and incur local wrath by challenging dis-

12 The full text of the court of appeals opinion is as follows:
“ On consideration o f  the briefs and records and oral argu­

ments in the above-styled appeal; and
Noting that the complaint appears to state a cause of action 

alleging racial discrimination in the exclusion of black citizens 
from equalaccess to housing, jobs and educational opportuni­
ties in the City of Parma, Ohio, which requires a factual 
hearing,

The judgment of the District Court is vacated and the case 
is remanded for trial.”

17

criminatory municipal action. 13 And local property 
owners may well, after ai controversy has erupted over 
the construction of lower income minority housing on their 
land, be relieved to see the project stymied by municipal 
action. ;

l . ■
3. An Effective Remedy Is Available.'

The court of appeals also denied standing because, in 
its view, effective relief could not be provided even if the 
plaintiffs prevailed. 14 “ Indeed, appellants’ prayer for 
relief demonstrates their lack of personal stake in the out­
come and their lack of standing.”  495 F.2d at 1192. The 
lower court apparently believed that ordering the relief 
requested would not produce the housing needed by the 
plaintiffs.

Granting this relief would not clear roadblocks to 
currently planned housing which appellants hope to 
occupy. It would not benefit appellants in any way 
in the foreseeable future. Id. at 1192-93.

13 As one commentator pointed out regarding the reluctance of 
builders to institute litigation challenging such misconduct: “ [I]s 
there any reason to suspect that builders familiar with the experi­
ence of Joseph Girsh will imitate his example of eight years of liti­
gation, three trips to the Supreme Court of Pennsylvania, three 
cases pending, all as a means of constructing apartment'houses?”  
Moskowitz, Standing of Future Residents in Exclusionary Zoning 
Cases, 6 Akron L. Rev. 189, 213 (1973). For case decision, see In 
re Girsh, 437 Pa. 237, 263 A.2d .395 (1970).

14 There is serious doubt whether the question of relief is prop­
erly to be considered in evaluating a plaintiff’s standing. “ [T]he 
concept of standing focuses on the party seeking relief, rather than 
on the precise nature of the relief sought.”  Jenkins v. McKeithen, 
supra at 423 (1969) (emphasis added). In examining the nature 
of the relief sought, the court of appeals might have confused 
the standing issue with other aspects of justiciability,, such as 
“ ripeness”  or “ political question,”  where the relief is properly 
a part of the inquiry. See Laird v. Tatum, 408 U.S. 1 (1972) ; 
United States v. Richardson, 94 S. Ct. 2940 (1974).



18

First, it should go without saying that the scope of 
relief is properly a matter left to the trial judge after a 
full evidentiary hearing on the merits of the plaintiffs 
claim. After such a trial, a judge might well deny all 
relief, grant only part of the plaintiffs’ request, or enter 
an order different from any judgment proposed by the 
parties. This is particularly true with respect to equitable 
relief, where the trial court must fashion his order in 
light of a complete factual record. Granting relief, like 
dismissing a.complaint, should only be undertaken after a 
full ■ and fair evidentiary hearing has been conducted. 
Jenkind v. McKeitlien, supra; see Public Affairs Associates 
v. Richover, 369 U.S. I l l  (1962); Sclieuer v. Rhodes, 
supra.

Second, it is important to stress that plaintiffs in this 
case seek not only declaratory, but also injunctive relief. 
We contend that both forms of remedy would remove 
“ roadblocks”  that prevent the construction of dwellings 
the plaintiffs could afford. A declaratory judgment alone 
would eliminate obstacles which, according to plaintiffs’ 
factual allegations, are major barriers to building sub­
sidized housing for lower income minorities. Moreover, 
the record shows that builders have sought in the past, 
and indeed currently seek, to construct housing for lower 
income minorities, only to be stifled by the defendants 
actions. Properly tailored declaratory relief might well 
result in this housing getting built.

Third, and most important, injunctive relief 'could 
directly produce the needed housing. If the plaintiff- 
petitioners establish through an evidentiary hearing that 
the defendants have engaged in racial discrimination, they 
will be entitled to a decree which requires the defendants 
to take affirmative action to correct the effects of their 
past discrimination., E.g., Swann v. Chariot t e-Mecklen­
burg Board of Education, 402 U.S. 1 (1971) ; Green v. 
County School Board; 391 U.S. 430 (1968) ; Louisiana v.

19

United States, 380 U.S. 145 (1965). Such a decree might 
well require the defendants to develop and implement an 
affirmative program winch would actively encourage 
builders and sponsors off subsidized housing to construct 
dwellings in Penfield and to take other* steps to assure that 
housing is provided for the plaintiffs and the class they 
represent. See Garrett v. City of Ramtramck, 335 F. Supp. 
16 (E.D. Mich. 1971), supplemental order, 357 F. Supp. 
925 (1973).

4. This Court's Recent Decisions Denying
Standing Are Inapplicable.

This Court’s recent defcisions denying standing do not 
lead to a different conclusion. See Schlesinger v. Reserv­
ists Committee to Stop the War, 94 S. Ct. 2925 (1974); 
United States v. Richardson, 94 S. Ct. 2940 (1974) ; O’Shea 
v. Littleton, 414 U.S. 488 (1974); Linda R. S. v. Richard D., 
410 U.S. 614 (1973) ; Laird v. Tatum, 408 U.S. 1 (1972) ; 
Sierra Club v. Morton, 405 U.S. 727 (1972).15 In each of 
these cases, the plaintiffs failed to allege that they were 
“ injured in fact”  by the defendants’ purportedly unlaw­
ful conduct. The substantial harm inflicted upon these 
plaintiffs by the defendants’ actions is a far cry, for 
example, from the minimal, subjective, and speculative 
injury alleged in Laird v. Tatum, supra.

Nor are we here concerned with vague and non-particu-
larized challenges to local systems of criminal justice
which would result in “ an.ongoing federal audit of state
criminal proceedings.”  O’Shea v. Littleton, supra at 500.

*
15 Some of these eases, to be sure, may more properly be classi­

fied as dealing with aspects of justiciability other than standing. 
The plaintiffs in United States v. Richardson, supra, appeared to 
be seeking to undertake responsibilities which the Constitution 
commits solely to Congress. ■ And in Linda R.S. v. Richard D. 
supra, the plaintiff sought an order directing prosecutorial au­
thorities to exercise their power in a specified way, a matter his­
torically committed to their sole discretion.



20

These “ generalized grievances about the conduct of gov­
ernment, y Flast v. Cohen, 392 U.S. 83, 106 (1968), are 
clearly inadequate bases upon which standing may be pre­
dicated. See also Sierra Club v. Morton, supra. Such 
judicial incursions would raise serious questions under 
the separation of powers doctrine and might well “ create 
a remarkably illogical system of judicial supervision of the 
coordinate branches of the Federal Government,”  United 
States v. Richardson, supra at 2952 (concurring opinion 
of Powell. J.). “ [Ijnjury in fact”  is what is needed, 
UatOt Processing v. Camp, supra at 152, not “ injury in 
the abstract,”  Schlesinger v. Reservists Committee, 
supra a,t 2930.

In sharp contrast, the present plaintiffs allege specific 
injury “ in a form traditionally capable of judicial resolu­
tion.”  Id. at 2932. They claim racial and economic dis- . 
crimination against municipal defendants under statutes 
expressly designed do remedy official misconduct of this 
nature. E.g., 42 U.S.C. 1983; Brown v. Board of Edu­
cation, 347 U.S. 483 (1954). ^ t

The irreplaceable value of the [judicial] power . . . 
lies in the protection it has afforded the constitional 
rights and liberties of individual citizens and minority 
groups against oppressive or discriminatory govern­
ment action. United States v. Richardson, supra at 
2954.

Th'e case at bar is precisely of that order: a challenge 
by representatives of “ minority groups against . . . dis­
criminatory government action.”  These plaintiffs _ allege 
they have been injured in fact by the policies and prac­
tices of the defendants. That allegation of harm to their 
right, to equal housing opportunity is sufficient to give 
them standing. They should be accorded an evidentiary 
hearing so that the full scope and serious nature of their 
claims can be presented.

21

CONCLUSION

For the reasons explicated in the foregoing submission, 
NCDH respectfully urges Ibis Court to reverse the judg­
ment below, and remand tlfe case for a trial on the merits.

r
Respectfully submitted, ■

M a r t ix  E. S loane  
A r th u r  D. W olf

National Committee Against 
; Discrimination in Housing, Inc.

1425 H Street, N.W., Ste. 410 
, Washington, D.C. 20005

.(202) 783-8150

November 29, 1974