Hudscapades

Residents wronged by "Fair" Housing Act

Brian J. Taylor from the October 1995 issue

(Page 2 of 2)

Federal Judge T.F. Gilroy Daly did, however, and he ruled in Robinson that DOJ had violated the First Amendment rights of the homeowners to petition their government by lawsuit. Hence, the defendants avoided over $100,000 in fines, although they incurred over $20,000 in legal costs anywayand DOJ is appealing the decision.

While the new HUD guidelines may have repaired some public-relations damage, they've had no effect on the agency's actions, says Wolski, the defense lawyer in the Bakersfield case. That's because once HUD refers a case to DOJ, the latter agencywhich isn't bound by the guidelines takes over.

In another recent action, HUD is investigating members of a Westlake Village, California, property-owners association for possibly violating the Fair Housing Act. Their alleged crime was not actually filing a lawsuit, but just considering one.

May I. Oxx, a member of the Windward Shores Homeowners Association in Westlake Village, is trying to turn her home into a hospice for the terminally ill. Other members of the association voted
in an annual meeting to enforce their CC&Rs, which they believe prohibit the opening of a commer cial facility. And then Oxx filed a complaint with a HUD field office, accusing her fellow association members of discriminating against the disabledher potential terminally ill patients.

But the homeowners oppose the commercial use of propertynot the disabledsays Doris Goetz, president of the Windward Shores board of directors. Goetz is infuriated that HUD has sent the board members notification letters, threatening them with thousands of dollars in fines. For trying to enforce their CC&Rsa duty the board is legally charged withHUD sent each member a letter telling them they could each be held liable for $100,000 for discrimination.

"I looked at my name on these papers," says Goetz. "I read them through, and by the third time I was mad. I am angry that there is some governmental agency addressing mail that is so offensive to me. Why am I being punished for doing what I am mandated to do? It's a damnable insult!"

HUD's California spokesman, John Phillips, says HUD uses "standard language to inform people of possible ramifications" in its letters, and insists the letters are not scare tactics. HUD hasn't taken any legal action against the homeowners association, as the agency investigation is not yet completed. And, says Phillips, HUD officials hope they can resolve the issue before it escalates.

Robert Saperstein, attorney for the homeowners, doubts Phillips's claim. Saperstein spoke with HUD "conciliator" Frank Riley, "and he basically told me that if we take any action toward filing a state suit he'll turn the issue over to the Department of Justice."

Rep. Anthony C. Beilenson (D-Calif.) was concerned enough about HUD's actions that he sent a letter to HUD officials, asking them to allow the homeowners to pursue their legal questions without threats by HUD, says Beilenson staffer Glenda Barnard. While HUD and DOJ currently enjoy relative autonomy, both agencies may soon receive closer congressional scrutiny. In a written statement to REASON, Rep. Charles Canady (R-Fla.) says, "I am concerned that the free speech rights of certain citizens are being overlooked or abused" by HUD and DOJ officials. He says the House Subcommittee on the Constitution, which he chairs, will "carefully evaluate this problem." And The Washington Times reports that Sen. Slade Gorton (R-Wash.) is also upset by recent HUD and DOJ actions, and, with other congressional Republicans, will seek an amendment to the Fair Housing Act to curtail the investigative powers of HUD and DOJ.

Although the DOJ failed to return numerous calls, a HUD official in Washington insists that the agency is complying with its own guidelines by requiring field offices to clear cases with Wash ington before starting an investigation. The HUD official also says there are certain circumstances when lawsuits are not protected by the First Amendment: when they are designed to promote an illegal purpose, are motivated by an intention to discriminate, or are frivolous.

Interestingly, in deciding Robinson, Judge Daly explicitly challenged such reasoning. He wrote: "While the defendants' alleged motives may be abhorred, it remains true that 'the Constitu tion protects expressionwithout regard to thetruth, popularity, or social utility of the ideas and beliefs which are offered.'"

If the "Bakersfield 5" or Westlake Village homeowners have their day in court, they can only hope their judge agrees with his Connecticut colleague.

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