(The Return of) Ignatz, by Sam Heldman

Monday, January 20, 2003

Supreme Court

The second case to be argued Tuesday is City of Cuyahoga v. Buckeye Community Hope. It's about fair housing law. It might present some interesting and fundamental questions about democracy and constitutional law; or it might end up being rather mundane. I'm hoping for mundane, because the Court could -- if so inclined -- use the case to make some really bad law. (Yes, "bad" is a value judgment, and I'm talking about my preferences. I know this.)

Buckeye, a developer, was going to build low-income housing in Cuyahoga. But, surprise surprise, some people in this lovely 98% white town didn't want that! (The 98% figure, by the way, comes from the Sixth Circuit's opinion.).

The city government had tried in various ways to derail or stall the project, but ultimately had to give it approval after concluding that there was no legal basis for withholding approval. But wait! Then the town's citizens lobbied to have a referendum placed on the ballot, and passed a specific referendum that overrode that approval. So the housing could not be built. Later, the Ohio Supreme Court held that referendum to have been improper under the Ohio Constitution, and so the project could go forward. Now, the questions before the Supreme Court arise out of a federal suit filed by Buckeye against the City, in which Buckeye is now seeking damages for the delay and extra expense.

There were supposed to be three questions before the Supreme Court, including one question about whether there could be a "disparate impact" claim under the Fair Housing Act in a case like this. ("Disparate impact" claims, in a nutshell, are claims in which the plaintiff says "I ought to be able to win even without showing that the defendant was intentionally discriminating against me on the basis of race (or sex or whatever), because the impact of the defendant's actions falls disproportionately on my protected class and there's no good reason for the action. Some statutes allow disparate impact claims to be brought, and others don't.) But the plaintiffs are essentially conceding that point in their brief to the Supreme Court, saying that they're not trying to bring a disparate impact claim even though the Sixth Circuit said that they could. In a sense, that makes this -- should make it, at least -- a very easy case to predict: the Supreme Court will probably vacate or reverse the Sixth Circuit's decision at least in part, even if only on that disparate impact issue.

The other two issues are the potentially big ones. One has to do with Equal Protection, and judicial review of laws adopted by ballot initiatives. Laws that are motivated by an intent to disadvantage Black people are unconstitutional, even if that intent is not apparent on the face of the law. But the big question here is, how do you prove that intent, when you're talking about a ballot initiative? Whose intent matters? How many voters' racist intent do you have to prove? Are you even allowed to try to prove this intent? The Sixth Circuit held that Buckeye had enough evidence of intent to warrant a trial; the Supreme Court is being asked to reverse that, and could do so either with sweeping propositions of law or with a narrow opinion about the particular evidence in this case.

The other issue is about Due Process, and the interesting part here is the question whether it is ipso facto unconstitutional to enact a ballot initiative that is targeted explicitly at one person. Does our concept of government allow a democratic vote to hose one specific person? We already know that our system of government does not allow a governmental action to hose one specific person where there's not even an arguably rational reason for the hosing. But the question here, potentially, goes beyond that, bringing up big questions about what a majority is entitled to do. Or it could be that this very interesting question ultimately doesn't wind up being dispositive of the case, and the Due Process issue could be resolved on some more boring basis.

I'm pretty comfortable in predicting that the Court will vacate or reverse the Sixth Circuit's decision at least in part, so I say "REVERSE" and wait anxiously to see exactly how the opinion is written.

posted by sam 9:04 AM 0 comments


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