Mason v. Adams Cnty. Recorder
Opinion of the Court
This is a civil-rights case, brought under the Fair Housing Act,
*755Plaintiff-Appellant, Darryl Mason, seeks injunctive relief to compel all Ohio county recorders to stop printing and publishing historical documents that contain racially restrictive covenants, to remove all such records from public view, and to permit the inspection and redaction of such documents. The district court granted Defendants-Appellees' motions to dismiss under Fed. R. Civ. P. 12(b)(6) on grounds that Mason lacked standing. We agree that Mason lacked standing and affirm.
I
Mason is an African-American resident of Hamilton County, Ohio. Mason filed suit against all 88 Ohio county recorders for violating the Fair Housing Act's ("the Act") prohibition against making, printing, or publishing "any ... statement" indicating a racial preference, such as a racially restrictive covenant. County recorders are responsible for keeping all records relating to land title, which include deeds, easements, restrictive covenants, mortgages, plats, maps, and land surveys. O.R.C. § 317.08. The Act makes it unlawful:
To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
Mason's complaint included copies of 29 land records, recorded between 1922 and 1957, that contain racially restrictive covenants. However, there is no evidence or allegation that any of the covenants have been enforced since 1948, when the Supreme Court prohibited courts from enforcing racially restrictive covenants in Shelley v. Kraemer ,
Mason maintains that the practice of county recorders to permit documents with restrictive covenants in the chain of title to be recorded or maintained and then make these documents available to the public violates the Act's prohibition against "making, printing, or publishing" any "notice, statement, or advertisement" with respect to "the sale or rental of a dwelling" that indicates any preference, limitation, or discrimination based on race.
Mason alleges that defendants "have discouraged the Plaintiff and others from purchasing real estate affected by restrictive covenants by creating a feeling that they are unwelcome or do not belong in certain neighborhoods" and that defendants' actions "damage and cloud the title to property owned by property owners ... by discouraging potential buyers." There is no allegation in the record that Mason intended to purchase, rent, or otherwise pursue any property, although at oral argument Mason's counsel stated that Mason had become aware of these racially restrictive covenants while he was looking to buy property, a fact not contained in the complaint and or otherwise added to the record prior to the filing of the Rule 12(b)(6) motions to dismiss.
The district court held that Mason lacked standing for three reasons. First, a plaintiff must show that he suffered a palpable economic injury distinct to himself. The district court held that Mason did not suffer an actual or threatened injury because Mason nowhere alleged that he intended to buy or rent or pursue any property. And, even if he had made such *756allegations, the restrictive covenants are no longer legally enforceable, and therefore Mason could not suffer any harm. Second, the alleged injury was not caused by the county recorders, but by the drafters of the restrictive covenants and the county recorders are required by Ohio statute to furnish these documents to the public. Third, county recorders cannot redress the alleged harm, as they have no statutory authority to edit documents after filing or while maintaining them.
II
The doctrine of standing is a threshold constitutional question of justiciability. Article III judicial power "exists only to redress or otherwise protect against injury to the complaining party." Warth v. Seldin ,
[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or 'hypothetical.' " Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife ,
Although in general standing may also be restricted in other ways, standing under the Act is "as broad as permitted by Article III of the Constitution." Wilson v. Glenwood Intermountain Props. ,
The question of whether Mason suffered an actual or threatened individualized injury is at the heart of this appeal. Mason's complaint does not address his intent or lack of intent to buy or rent property. To establish economic injury, it could have been sufficient for Mason to allege that he was interested in a property in a particular county, examined some records, and was discouraged from buying or renting a property by reading the restrictive covenants. He did not have to identify a specific property to gain standing. But, Mason did not allege any economic harm at all.
Mason's complaint also sets forth a non-economic claim that defendants "discouraged *757[him] and others from purchasing real estate affected by restrictive covenants by creating a feeling that they are unwelcome or do not belong in certain neighborhoods." Whether that "feeling" amounts to a concrete injury is a serious question. See Crawford v. U.S. Dep't of Treasury ,
But that allegation cannot support Mason's standing for another reason: it is not particularized to him. "For an injury to be 'particularized,' it must affect the plaintiff in a personal and individual way." Spokeo, Inc. v. Robins , --- U.S. ----,
Any reliance on Havens Realty ,
In ancient Rome, the practice of damnatio memoriae ,
The judgment of the district court is AFFIRMED.
CONCURRENCE
See , e.g., Lauren H. Petersen, The Presence of "Damnatio Memoriae" in Roman Art , Source: Notes in the History of Art , Winter 2011, at 1.
Concurring Opinion
I concur in the judgment and, for the most part, in the opinion's analysis, but I *758do not entirely agree with the majority's suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are "part of our living history and witness to the evolution of our cultural norms." Justice may require us to repudiate or revise elements of our "living history" if those elements-whether they be public records, flags, or statutes-are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.
I also fear that the majority's statement that "Mason's discomfort at the expression of historical language does not create particularized injury" could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes-not hinders-a free and equal society. I do, however, respectfully concur.
Reference
- Full Case Name
- Darryl O. MASON v. ADAMS COUNTY RECORDER
- Cited By
- 5 cases
- Status
- Published