Here’s a short but interesting one from the U.S. Court of Appeals for the Sixth Circuit. It isn’t exactly about the usual topics we cover, but is interesting enough that we thought we would post it.
The case involves old deeds (dated between 1922 and 1957) in the Adams County, Ohio recorder’s office, which contain unenforceable racially restrictive covenants. (You remember back in law school where you learned that these things can’t be enforced because the Supreme Court in Shelley v. Kraemer, 334 U.S. 1 (1948) prohibited courts from doing so, even if the contracts were private.)
The plaintiffs in Mason v. Adams County Recorder, No. 17-3605 (Aug. 28, 2018) objected to the objectionable deed language remaining on public record in the recorder’s office:
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. 42 U.S.C. § 3604(c). Mason states that Ohio’s county recorders have made no effort to redact, remove, cover, or otherwise conceal unlawful racially restrictive covenants in land records, in violation of § 3604(c).
Slip op. at 3. (*”The Act” refers to the Fair Housing Act, which prohibits making, printing, or publishing “any . . . statement” indicating a racial preference, such as a racially restrictive covenant.) Interesting claim, for sure.
Unfortunately (for the plaintiffs), the plaintiffs were not buyers of land with these deeds, but, they alleged, they had been “discouraged” from buying by “creating a feeling that they are unwelcome or do not belong in certain neighborhoods.” Slip op. at 3. To the district court and the Sixth Circuit, this meant no injury and thus no standing.
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 [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.
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.” Here, Mason failed to allege that any racially restrictive covenant affected him in a personal way. Instead, he sued every county recorder in the state of Ohio, claiming generally that keeping such covenants on the books violates federal law. Indeed, on appeal, Mason says that his purported injury is to his “interests in the government following the laws it passes” and “is arguably shared by every resident of the state [of Ohio].” Such an “undifferentiated, generalized grievance about the conduct of government” cannot give him standing.
Slip op. at 4-5 (citations omitted).
The opinion ended with this:
In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.
Slip op. at 6 (footnote omitted).
Mason v. Adams County Recorder, No. 17-3605 (6th Cir. Aug. 28, 2018)