U.S. Supreme Court HUNTER v. ERICKSON, 393 U.S. 385 (1969) 393 U.S. 385

[Page 393 U.S. 385, 388]

v. Erickson, 6 Ohio St. 2d 130, 216 N. E. 2d 371 (1966). On remand, the trial court held that the fair housing ordinance was rendered ineffective by the charter amendment, and the Supreme Court of Ohio affirmed, holding that the charter amendment was not repugnant to the Equal Protection Clause of the Constitution.

Akron contends that this case has been rendered moot by the passage of the Civil Rights Act of 1968, Pub. L. 90-284, 82 Stat. 73, the decision of this Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and the passage of an Ohio Act effective October 30, 1965, Ohio Rev. Code Ann., Tit. 41, c. 4112. It is true that each of these events is related to open housing, but none of the legislation involved was intended to pre-empt local housing ordinances or provide rights and remedies which are effective substitutes for the Akron law.

The 1968 Civil Rights Act specifically preserves and defers to local fair housing laws,[Footnote 1] and the 1866 Civil Rights Act[Footnote 2] considered in Jones should be read together with the later statute on the same subject, United States v. Stewart, 311 U.S. 60, 64-65 (1940); Talbot v. Seeman, 1 Cranch 1, 34-35 (1801), so as not to pre-empt the local legislation which the far more detailed Act of 1968 so explicitly preserves. If the Ohio statute mooted the case, surely the Ohio Supreme Court would have so held when the validity of the Akron ordinance was twice before it after the Ohio statute was passed. Moreover, the sections of the Ohio law which are crucial here apply only to "commercial housing," and on any reading

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we can imagine do not apply to Mrs. Hunter's case,[Footnote 3] though the Akron ordinance does. Finally, the case cannot be considered moot since the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Unlike state or federal programs, the Akron ordinance brings local people together for conciliation and persuasion by and before a local tribunal. It is precisely this sort of very localized solution to which Congress meant to defer. We therefore reject the contention that this case is moot.

Akron argues that this case is unlike Reitman v. Mulkey, (1967) in that here the city charter declares no right to discriminate in housing, authorizes and encourages no housing discrimination, and places no ban on the enactment of fair housing ordinances. But we need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.

By adding 137 to its Charter the City of Akron, which unquestionably wields state power,[Footnote 4] not only suspended

[Page 393 U.S. 385, 390]

the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect.[Footnote 5] Section 137 thus drew a distinction between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule: the ordinance would become effective 30 days after passage by the City Council, or immediately if passed as an emergency measure, and would be subject to referendum only if 10% of the electors so requested by filing a proper and timely petition.[Footnote 6] Passage by the Council sufficed unless the electors themselves invoked the general referendum provisions of the city charter. But for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to 137.

[Page 393 U.S. 385, 392]

Wall. 36, 71 (1873); Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880); Ex parte Virginia, 100 U.S. 339, 344-345 (1880); McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Loving v. Virginia, 388 U.S. 1, 10 (1967), racial classifications are "constitutionally suspect," Bolling v. Sharpe, 347 U.S. 497, 499 (1954), and subject to the "most rigid scrutiny," Korematsu v. United States, 323 U.S. 214, 216 (1944). They "bear a far heavier burden of justification" than other classifications, McLaughlin v. Florida, 379 U.S. 184, 194 (1964).

We are unimpressed with any of Akron's justifications for its discrimination. Characterizing it simply as a public decision to move slowly in the delicate area of race relations emphasizes the impact and burden of 137, but does not justify it. The amendment was unnecessary either to implement a decision to go slowly, or to allow the people of Akron to participate in that decision.[Footnote 7] Likewise, insisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. Nor does the implementation of this change through popular referendum immunize it. Lucas v. Colorado General Assembly, 377 U.S. 713, 736-737 (1964). The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed. Even though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so,

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the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size. Cf. Reynolds v. Sims, (1964); Avery v. Midland County, 390 U.S. 474 (1968).

We hold that 137 discriminates against minorities, and constitutes a real, substantial, and invidious denial of the equal protection of the laws.

Reversed.

FootnotesFootnote 1 Nothing in the federal statute is to be construed "to invalidate or limit any law of a State or political subdivision of a State" giving similar housing rights, and deference is to be given to local enforcement. Civil Rights Act of 1968, Tit. VIII, 815, 810 (c), 82 Stat. 89, 86.

Footnote 2 "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." 1, 14 Stat. 27, as amended, 42 U.S.C. 1982.

Footnote 3 The Ohio statute makes it unlawful for "any person" to "[r]efuse to sell . . . or otherwise deny or withhold commercial housing from any person because of the race [or] color" of the prospective owner. Ohio Rev. Code Ann. 4112.02 (H) and 4112.02 (H) (1) (Supp. 1967) (emphasis added). "Commercial housing" is defined to exclude "any personal residence offered for sale or rent by the owner or by his broker, salesman, agent, or employee." Ohio Rev. Code Ann. 4112.01 (K) (Supp. 1967). The statute makes it unlawful to "[p]rint, publish, or circulate any statement or advertisement relating to the sale [of a] . . . personal residence . . . which indicates any preference, limitation, specification, or discrimination based upon race . . . ." Ohio Rev. Code Ann. 4112.02 (H) (6) (Supp. 1967). Since Mrs. Hunter does not seek commercial housing, or complain of the affront to her sensibilities of hearing a "circulated" statement (if the Ohio statute goes that far) she cannot obtain the relief she seeks under the Ohio statute.

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will have its real impact only when fair housing does not arouse extraordinary controversy. This being the case, I can perceive no legitimate state interest which in any degree vindicates the action taken by the City here.

As I read the Court's opinion to be entirely consistent with the basic principles which I believe control this case, I join in it.

[Footnote *] Section 25 of Akron's city charter exempts the following ordinances from the referendum procedure:

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