Free Speech: HUDscapades

Residents wronged by "Fair" Housing Act

What good is your constitutional right to petition the government if it only results in the government suing you? Homeowners–from Bakersfield, California, to Fort Worth, Texas–are asking themselves this question as they are prosecuted by the Housing and Urban Development and Justice departments on housing discrimination charges.

In 1992, Bakersfield residents David and Kathryn Fitzgerald, William and Linda DeRose, and Charles Kirschenmann asked a state court to prevent the opening of a boarding facility for mentally retarded adults. They argued that the group home would violate their subdivision's covenants, conditions, and restrictions (CC&Rs), which limit the use of homes to single-family residences. The residents also feared that allowing the commercial use of a house in their neighborhood would lower property values, says their attorney, Victor Wolski.

A judge issued a preliminary injunction against the facility, waiting for a judicial resolution. That case, however, can't be heard until another matter is settled: The U.S. Department of Housing and Urban Development–the federal agency charged with investigating discrimination in housing–has accused the five residents of violating housing discrimination laws. It brought suit against them in federal court in October 1993.

By trying to keep the group home out of their neighborhood, says HUD, the residents have run afoul of the Fair Housing Act, which states that it is unlawful to coerce, intimidate, threaten, or interfere with anyone's fair housing rights. The act prohibits discrimination based on race, color, religion, sex, handicap, familial status, or national origin. The Department of Justice is prosecuting the residents in United States v. Fitzgerald, which is scheduled for trial in November.

Shortly after being sued, the Bakersfield homeowners offered to drop their case against the group home if the feds would drop the discrimination suit. But HUD and DOJ refused, even though dropping the case would have meant the group home could have moved forward. The residents have refused to back down, and the temporary injunction against the group home remains in place.

The unwillingness of the government to settle the case constitutes "harassment and abuse" says Wolski, who, with the Sacramento-based nonprofit Pacific Legal Foundation, is providing pro bono help to the defense. The government, says Wolski, "is arguing that anyone who defends their property rights must be a bigot."

The government is now–in early August–acquiescing, and considering the original settlement offer from the residents. The residents, fearing thousands of dollars in damages, will agree to drop the state suit enforcing their CC&Rs if the feds leave them alone.

William and Linda DeRose, exhausted from fighting the boarding facility and being threatened by HUD, are selling their home. "It's easier to move than to deal with HUD," says Linda DeRose, who welcomes a settlement. "It's not worth fighting."

As two ongoing cases–U.S. v. Wagner et al. and U.S. v. Robinson–suggest, the Bakersfield case appears to be part of a larger strategy on the part of HUD and DOJ. What makes these cases telling–and adds to the image of HUD and DOJ as agencies motivated by bureaucratic vindictiveness–is that they are being prosecuted after HUD received a great deal of negative publicity in 1994 for the way it handled a case in which three Berkeley, California, residents opposed converting a hotel into a homeless shelter and drug rehabilitation halfway house. After a seven-month investigation of the residents, HUD backed down and withdrew its complaint.

In the wake of the Berkeley incident, HUD instituted agency guidelines to "insure that Americans' free speech rights are not infringed by investigations into fair housing complaints." The agency also issued a memo to its field staff that asserted, "The Department chooses to err on the side of the First Amendment" when deciding which cases to investigate. But HUD's actions in Wagner appear to belie its lofty proclamations.

Wagner began in May 1991 when 11 Fort Worth, Texas, residents tried to prevent a couple from selling their house to a county agency that planned to turn it into a group facility for the mentally retarded. As in Fitzgerald, the homeowners argued that a group home would violate local CC&Rs and were granted a temporary injunction from a state court judge. Nine days later, the residents became aware of a Texas law stating that group homes could not be excluded based on a deed restriction for single-family homes. Since the residents' prospects for winning were bleak, they withdrew their suit and the group facility, housing six retarded residents, opened in late 1991.

Four years later, however, the federal government has brought suit against the homeowners. HUD officials, believing that the Fort Worth residents had run afoul of the Fair Housing Act, referred the case to DOJ–which dutifully began prosecuting the residents for opposing the group home. "DOJ officials are acting akin to thought police who punish individuals for having improper motives," says Rick Disney, one of three attorneys for the defendants.

The government's actions have struck a nerve in the local community: Commenting on the case, the Fort Worth Star Telegram advised DOJ to "read the Constitution." The defense has filed a motion for summary judgment, hoping to get the case dismissed even before it begins in January 1996.

If U.S. v. Robinson is any indication, the defendants in Wagner have reason to be optimistic. This past February, a federal judge dismissed a HUD and DOJ discrimination complaint against homeowners in New Haven, Connecticut. In 1992, residents tried to prevent a group home for handicapped children on the grounds that it would violate zoning ordinances restricting the number of unrelated people allowed to live in a single home. HUD accused the residents of discrimination and DOJ brought a case against them.

The residents withdrew their zoning complaint when they realized they were the target of a lawsuit. The group home opened, but DOJ proceeded with their case anyway. David Golub, an attorney for two of the six defendants in Robinson, told The Hartford Courant that DOJ officials were "on a mission" and "didn't care whether their arguments or their positions were correct or consistent with the law."

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 anyway–and 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 agency–which 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 commercial facility. And then Oxx filed a complaint with a HUD field office, accusing her fellow association members of discriminating against the disabled–her potential terminally ill patients.

But the homeowners oppose the commercial use of property–not the disabled–says 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&Rs–a duty the board is legally charged with–HUD 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 Washington 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 Constitution protects expression…without regard to the…truth, 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.

Brian J. Taylor ([e-mail]) is REASON's 1995 Burton C. Gray Memorial Intern.