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SCOTUS (11-1507) Amicus brief for Mount Holly NJ

SCOTUS (11-1507) Amicus brief for Mount Holly NJ

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No. 11-1507 the Supreme Court the United States 
TOWNSHIP MOUNT HOLLY, AL., 
Petitioners, 
MT. HOLLY GARDENS CITIZENS ACTION, INC., AL., 
Respondents. Writ Certiorari the United States 
Court Appeals for the Third Circuit 

BRIEF AMICUS CURIAE JUDICIAL 
WATCH, INC. SUPPORT PETITIONER
 
Julie Axelrod 
Counsel Record 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Suite 800 
Washington,  20024 
jaxelrod@judicialwatch.org(202) 646-5172 

Counsel for Amicus Curiae 

TABLE CONTENTS 
TABLE AUTHORITIES ...................................... 

INTEREST THE AMICUS CURIAE ................... 

SUMMARY THE ARGUMENT ............................ 

ARGUMENT ...............................................................	 The complicated scheme adopted HUD and the Third Circuit determine disparateimpact liability should rejected because the statute itself contemplates nothing other thanintentional discrimination. .............................. The plain language the FHA unambiguous .......................................... Using selective reading legislative history and context justify expanding the FHA beyond what supportable bythe text inappropriate ........................ Potential difficulties distinguishing between covert discrimination and nondiscriminatory refusals not justify misinterpreting the statute ................... 
II. 	The Court should also reject any construction imposing disparate impact liability because would create constitutional infirmities for the FHA. ................................................................ 
CONCLUSION .......................................................... 

TABLE AUTHORITIES 
CASES 
Dean U.S., 
556 U.S. 568 (2009).  ........................................ 

Desert Palace Inc. Costa, 
539 U.S. (2003)  ......................................... 

Freeman Pitts, 
503 U.S. 467 (1992)  ....................................... 

Johnson California, 
543 U.S. 449 (2005)  ................................. 10-11 

Metro. Hous. Dev. Corp. Vill. Arlington Heights, 
558 F.2d 1283 (7th Cir. 1977) .......................... 

Miller Johnson, 
515 U.S. 900 (1995)  ....................................... 

Milner Dept the Navy, 
131 Ct. 1259 (2010)  ..................................... 

Morrison Olson, 
487 U.S. 654 (1988)  ....................................... 

Mt. Holly Gardens Citizens Action Mt. Holly 
Gardens, 
658 F.3d 375 (3d Cir. 2011)  ............................. 

Parents Involved Cmty. Sch. Seattle Sch. Dist. No. 
551 U.S. 701 (2007)  ................................. 10,
 Trafficante Metro Life Ins. Co, 

409 U.S. 205 (1972)    ....................................... 
STATUTES U.S.C.  304 seq .............................................. 3-4 U.S.C.  3604 (a).  ....................................... 11-12
 MISCELLANEOUS 
Federal Register, 78, No.  .............................. 3-4,
 114 Cong. Rec. 2526 (1968) ........................................ 

114 Cong. Rec. 2692 (1968) ........................................ 
Housing Discrimination Against Racial and Ethnic
Minorities, 2012, U.S. Department Housing and
Urban Development.  .................................................. 

Ilyce Glink. U.S. Housing Remains Deeply
Segregated. Moneywatch, June 20, 2012.  ................
 
INTEREST AMICUS CURIAE1 
Judicial Watch, Inc. (Judicial Watch) nonpartisan educational organization that seeks topromote transparency, accountability and integrity government and fidelity the rule law.  Judicial Watch regularly files amicus briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
Judicial Watch believes that fidelity the rule oflaw well the Constitution requires this Court end decades circuit court misinterpretation the Fair Housing Act (FHA) establishing liability the basis disparate impact.  The Department ofHousing and Urban Development (HUD) has also recently adopted regulations formalizing this overreach statutory authority, unlawfullyprohibiting practices merely for having statisticallydisparate impact protected groups.  Judicial Watch concerned that the imposition liability under the FHA for practices that are both facially neutral andunmotivated discriminatory intent threatens therule law myriad ways and results violations the Equal Protection clause theConstitution. The Third Circuits decision results unworkable standard that assumes discrimination Pursuant Supreme Court Rule 37.6. amicus curiae states that counsel for party authored this brief whole partand that person entity, other than amicus curiae and its counsel, made monetary contribution intended fund the preparation and submission this brief.  The parties have consented the filing this brief. Letters reflecting thisblanket consent have been filed with the Clerk. the cause the natural workings the housing market. The government should not, and constitutionally cannot, involved distorting the housing market the basis correcting racialdisparities. For these reasons, Judicial Watch urgesthe Court overturn the Third Circuits decision. 

SUMMARY THE ARGUMENT 
Section 804(a) the FHA prohibits only disparatetreatment, not disparate impact the Third Circuithas ruled. The FHA prohibits deliberatelydiscriminatory housing practices; does not insist that all practices regarding the sale rental housing impact protected and non-protected groups ina statistically neutral equivalent manner.  The text the statute unambiguous, and merely prohibitsdiscriminatory treatment. analysis the legislative history only confirms the clear language the text. Though HUD has adopted regulationsagreeing with the Third Circuit and urges this Court uphold the Third Circuits opinion, its interpretation the FHA not entitled deferenceas reaches beyond the text the law.  Furthermore, the FHA were interpreted HUD and theRespondents advocate, would unconstitutionalunder the Fourteenth Amendment the U.S. Constitution. The Court should decline allow the Third Circuit, HUD, Respondents create anunconstitutional and unworkable disparate impact standard under the FHA. 

ARGUMENT 1968, effort promote fair housingthroughout the United States, Congress passed the FHA. The FHA created new federal private causeof action for individuals and also directed executive agencies and departments affirmatively enforce the law. The FHA purported increase the fairness access housing outlawing discriminatorypractices regards access housing.  The point dispute whether the practices that the FHAoutlawed were only those constituting intentional discrimination against member protected group (disparate treatment) all practices that not affect each named group statistically neutral equivalent manner (disparate impact).  
Congress created relatively straightforwardcause action when enacted the FHA. order win, plaintiff must introduce evidence discrimination the part the defendant.  Yet several decades court and agency misinterpretation have created complicated scheme determine when liability can imposed where discriminatory intent the defendants part exists.2 history the court rulings well agency interpretationsdeveloping this scheme was recently set out HUDs Implementation the Fair Housings Discriminatory Effects Standard, Vol. 78, No. 32, Friday, February 15, 2013, pp.1146111463.  The final rule also explains that the regulation is neededto formalize HUDs long held interpretation the availability ofdiscriminatory effects liability under the Fair Housing Act, 42, 
U.S. 3601 seq., and provide nationwide consistency theapplication that form liability.  Id. 11460. Decades rulings the lower courts meant that different courts had 
The Court has never ratified this scheme, and should correct this overreach now. 	The complicated scheme adopted HUD and the Third Circuit determine disparate impact liability should rejected because the statute itself contemplates nothing other than intentional discrimination. 	The plain language the FHA unambiguous. 
When interpreting statute, the first issue toconsider simply what present the statutes text. See, e.g. Dean U.S. 556 U.S. 568, 572 (2009).We ordinarily resist reading words elements into statute that not appear its face. Id. Section 804(a) the FHA does nothing more than make itunlawful refuse sell rent after the making ofa bona fide offer, refuse negotiate for the saleor rental of, otherwise make unavailable deny, 
developed somewhat different standards for this kind liability,but HUD settled three part burden-shifting test for proving such liability that imposes liability defendants whosepractices have disparate impact protected classes, but allowdefendants justify their practices showing they had less discriminatory alternative.  While HUD congratulated itself onproviding clear, consistent, nationwide standard thatpurportedly limits litigation, this supposed clarity waysolves the problem the entire lack textual authority for aburden-shifting scheme.  Id. addition, such scheme, while may nationwide, far from clear and consistent.  Rather, complicated, confusing, and unworkable. The standard applied this case the Third Circuit likewise confusing aswell unsupported the statute. 
dwelling any person because race, color, religion,sex, familial status, national origin. U.S.C. 3604 (a). The words because of race convey that race must the reason (or least reason) for therefusal. The only logical way interpret these words find that there must intent discriminate against member one the named classes ofpersons order for the refusal unlawful.  
Because the statute unambiguous, properinterpretation need further than the text.Legislative intent cannot refute unambiguousstatutory language. Those who make use oflegislative history believe that clear evidence ofcongressional intent may illuminate ambiguous text.We will not take the opposite tack allowingambiguous legislative history muddy clear statutory language. Milner Dept the Navy, 131 Ct. 1259, 1266 (2010). Attempting muddy clear statutory language precisely the endeavor thatproponents the disparate impact standard have engaged in, however. Using selective reading legislative 
history and context justify expanding 
the FHA beyond what supportable 

the text inappropriate.  
The primary justification offered for departing from the FHAs text that the departure necessary meet its broad aspirations. this case, the Third Circuit justifies its standard stating: conduct thathas the necessary and foreseeable consequence perpetuating segregation  can deleterious purposefully discriminatory conduct frustratingthe national commitment replace the ghettos bytruly integrated and balanced living patterns. Mt. Holly Gardens Citizens Action Mt. Holly Gardens, 658 F.3d 375, 381 (3d Cir. 2011), citing Metro. Hous. Dev. Corp. Vill. Arlington Heights, 558 1283, 1289-90 (7th Cir. 1977). HUD also justifies the interpretation done the service achieving truly integrated and balanced livingpatterns. Federal Register, Vo. 78, No. 11461.The source this frequently used quotation wasSenator Mondale, who drafted Section 810 (a) andwas leading proponent the FHA.    Trafficante Metro Life Ins. Co, 409 U.S. 205, 211 (1972). 
One reason why using the broad, aspirational goals single senator who promoted statute toexpand that statutes authority beyond the text thatmany people with the same broad goals may differconsiderably what means they believe are necessary and appropriate achieve them. wish tointegrate housing one supporter statute, even leading proponent, cannot translated intostatutory authority integrate housing anymeans necessary. While HUD states that such [disparate impact] liability imperative the success civil rights law enforcement, many the laws original supporters simply had different opinion. Federal Register 11461. Those who favor disparate impact standard under the FHA point tothe broad goals its supporters because closer examination its supporters preferred specific means achieve their goals does not favor the position advocated here HUD and the Respondents. closer look legislative history shows that also does not provide support for prohibitions basedon disparate impact. The floor debate suggests that even Senator Mondale himself did not believe prohibiting intentional discrimination would ultimately prove inadequate achieve integration. Some his statements imply that prohibiting intentional discrimination the way achieve integration: 
[T]he Senate has been involved for some days discussion what regard asperhaps the most important issue faceCongress this session; namely, whether will decide once and for all prohibitdeeply imbedded patterns segregatedliving America, enacting meaningful law against widely practiced efforts restrict housing minorities through the discriminatory sale rentals housing  
[emphasis added] 114 Cong. Rec. 2692 (Feb. 1968)available http://mondale.law.umn.edu/pdf14/v.114_pt.3_2692-2703.pdf 
Proponents the disparate impact standardseem feel that desire integrate neighborhoods must translate into promotion more than simple non-discrimination. But that standpoint amodern person. Forty-five years after the FHAs passage, discrimination housing has become much more rare.3  Though HUD official today might take such results for granted, senator 1968 would probably see great achievement and success. In1968, those who passed the act did not know what anAmerica that outlawed discrimination would look like. One can speculate that someone like Senator Mondale might have rather written law that focused effects rather than intentions had known what housing patterns would look like 2013.4  But one can also speculate that had written such alaw instead the one wrote, would not have passed the first place; that would have concluded that actual integration was not important long one was denied the opportunity live anywhere the basis color. The uncertainty allsuch speculation legislative intent shows why never appropriate let such considerations cloudthe interpretation unambiguously written statute. Isolating few sentences from many days offloor debates attempt create context thatwill allow massive change meaning the text thus improper. See, e.g. Housing Discrimination Against Racial and Ethnic Minorities, 2012, pp.8-9, available http://www.huduser.org/portal/Publications/pdf/HUD514_HDS2012_execsumm.pdf.  This report explains that 1977, black renters were frequently denied access advertisedunits that were available equally qualified whites.  This kind door slamming discrimination had declined dramatically by1989. 
Vastly reducing discrimination does not automatically integrate neighborhoods. Ilyce Glink. U.S. Housing Remains Deeply Segregated. Moneywatch, June 20, 2012 Potential difficulties distinguishing 
between covert discrimination and non
discriminatory refusals not justify 

misinterpreting the statute. 
The FHA prohibits all practices motivated bydiscrimination against protected classes, even those that are not blatant. some situations, defendant can simply disguise his discrimination, adopting seemingly neutral practice whose real purpose todiscriminate based forbidden category.  Senator Mondale referred such practices when described local ordinances with the same effect [racial discrimination], although operating more deviously inan attempt avoid the Courts prohibition, were still being enacted.  114 Cong. Rec. 2526 (1968). Althoughthe FHA prohibited all forms discrimination, covert overt, proving covert discrimination generallymuch more difficult. can hard prove thedifference between neutral practice adopted goodfaith and covertly discriminatory practices. 
But though proving claim may not always easy for plaintiff, particularly the defendant has taken pains disguise any unlawful conduct, court should not determine that punishing the innocent isacceptable simply because some guilty defendants areclever hiding their unlawful conduct. Plaintiffs are not required offer devastatingly conclusive evidence, they only need offer evidence, and circumstantial evidence discrimination generally acceptable. See, e.g. Desert Palace Inc. Costa, 539 
U.S. (2003), (holding that circumstantial evidencemay sufficient and even more satisfying than direct, discrimination cases.)  Under the statute, defendants who have adopted practice with theintent discriminate have not violated the law. 
II. The Court should also reject any construction imposing disparate impact liability because would create constitutional infirmities for the FHA. 
[I]t the duty federal courts construe astatute order save from constitutional infirmities. Morrison Olson, 487 U.S. 654, 682 (1988). Congress had imposed disparate impactliability under the FHA, would have violated equal protection doing so, because would force both public agencies and private individuals affirmatively use suspect classifications order avoid liability under the FHA. 
All racial classifications [imposed bygovernment] must analyzed reviewing court under strict scrutiny. Johnson California, 543 U.S. 449, 505 (2005). Strict scrutiny theappropriate standard, even for so-called benign racial classifications. Parents Involved Cmty. Sch. Seattle Sch. Dist. No. 551 U.S. 701, 741 (2007).Therefore, interpretation Section 804(a) whichwould cause any government agency use imposeracial classifications would require the FHA subject strict scrutiny, that is, would need benarrowly tailored achieve compelling state interest order upheld.  Johnson 505. 
Interpreting Section 804(a) impose liabilitybased disparate impact rather than intentionaldiscrimination, Respondents urge, results constitutionally suspect governmental classifications based race. this case, disparate impact liabilitywill probably result either set Plaintiffs with the ability stop their local government fromdeveloping their property when group similarly situated people different race could not, local government which must use racial classifications deliberately order set redevelopment plan that will survive court challenge.  The Township ofMt. Holly would not able ensure that anydevelopment plan adopted did not have disparate effect different racial groups unless extensively used racial classifications throughout the process.   
Any such extensive use racial classificationswould not only burdensome5 but would unlikelyto survive strict scrutiny, extensive use ofpreferences not narrowly tailored and the Court does not view racial balancing compelling state interest. fact the Court has found quite theopposite: at the heart the Constitutions guaranteeof equal protection lies the simple command that the Government must treat citizens individuals, not simply components racial, religious, sexual national class. Miller Johnson, 515 U.S. 900, 911 Officials attempting good faith make such classificationswork would face more than one quandary: which populationstatistics they ought use, how they should examine demographic breakdown, and whether study demographics the national, state, county level would all difficult questions.  
(1995). The Court finds that [t]his working backwardto achieve particular type racial balance fatal flaw under our existing precedent.  Parents Involved, 551 729. Racial balance not achieved for its own sake. Freeman Pitts, 503 U.S. 467, 494 (1992). 
Not only would local governments need keep track race when adopting redevelopment plans,such liability under Section 804 (a) provides clearlimiting principle government action any levelthat impacts access housing.  Housing codes, environmental protection regulations, host other laws could all potentially subject disparateimpact claims they not make use suspect classifications.  Thus would extremely difficult narrowly tailor racial classifications avoid disparate impact liability.  
These and other potential constitutional infirmities may avoided construing Section804(a) impose liability only for intentional discrimination.  Government officials would then, the simple expediency avoiding deliberate practices which discriminate the basis protected classifications, able avoid both liability claims under the FHA well equal protection claims under the Fourteenth Amendment. construingthe FHA, the Court may save from Constitutionalinfirmities. The logical choice for the Court overturn the Third Circuits ruling and end thistroublesome and lawless imposition liability. 

CONCLUSION 
For the foregoing reasons, the judgment the court appeals should reversed and this Court should determine that claims based merely ondisparate impact should cognizable under the FairHousing Act. 
Respectfully submitted, 
Julie Axelrod Counsel Record JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington,  20024 jaxelrod@judicialwatch.org
(202) 646-5172 
Counsel for Amicus Curiae 
September 2013