Petition for Rehearing En Banc Denied July 11, 1968.
J. SKELLY WRIGHT, Circuit Judge:
In March 1965 the appellant, Mrs. Yvonne Edwards, rented housing property from the appellee, Nathan Habib, on a month-to-month basis. Shortly thereafter she complained to the Department of Licenses and Inspections of sanitary code violations which her landlord had failed to remedy. In the course of the ensuing inspection, more than 40 such violations were discovered which the Department ordered the landlord to correct. Habib then gave Mrs. Edwards a 30-day statutory notice1 to vacate and obtained a default judgment for possession of the premises.2 Mrs. Edwards promptly moved to reopen this judgment, alleging excusable neglect for the default and also alleging as a defense that the notice to quit was given in retaliation for her complaints to the housing authorities. Judge Greene, sitting on motions in the Court of General Sessions, set aside the default judgment and, in a very thoughtful opinion, concluded that a retaliatory motive, if proved, would constitute a defense to the action for possession.3 At the trial itself, however, a different judge apparently deemed evidence of retaliatory motive irrelevant and directed a verdict for the landlord.
Mrs. Edwards then appealed to this court for a stay pending her appeal to the District of Columbia Court of Appeals, and on December 3, 1965, we granted the stay, provided only that Mrs. Edwards continue to pay her rent. Edwards v. Habib, 125 U.S.App.D.C. 49, 366 F.2d 628 (1965). She then appealed to the DCCA, which affirmed the judgment of the trial court. 227 A.2d 388 (1967). In reaching its decision the DCCA relied on a series of its earlier decisions holding that a private landlord was not required, under the District of Columbia Code, to give a reason for evicting a month-to-month tenant and was free to do so for any reason or for no reason at all.4 The court acknowledged that the landlord's right to terminate a tenancy is not absolute, but felt that any limitation on his prerogative had to be based on specific statutes or very special circumstances.5 Here, the court concluded, the tenant's right to report violations of law and to petition for redress of grievances was not protected by specific legislation and that any change in the relative rights of tenants and landlords should be undertaken by the legislature, not the courts. We granted appellant leave to appeal that decision to this court. We hold that the promulgation of the housing code by the District of Columbia Commissioners at the direction of Congress impliedly effected just such a change in the relative rights of landlords and tenants and that proof of a retaliatory motive does constitute a defense to an action of eviction. Accordingly, we reverse the decision of the DCCA with directions that it remand to the Court of General Sessions for a new trial where Mrs. Edwards will be permitted to try to prove to a jury that her landlord who seeks to evict her harbors a retaliatory intent.
Appellant has launched a constitutional challenge to the judicial implementation of 45 D.C. CODE §§ 902 and 910 in aid of a landlord who is evicting because his tenant has reported housing code violations on the premises. We do not, however, reach the question whether it is unconstitutional for the court to apply the statute in such circumstances because we think Congress never intended that it be so applied. Nevertheless, because constitutional considerations inform the statutory construction on which our decision rests, we do discuss them briefly.6
Appellant argues first that to evict her because she has reported violations of the law to the housing authorities would abridge her First Amendment rights to report violations of law and to petition the government for redress of grievances. But while it is clear beyond peradventure that the making of such complaints is at the core of protected First Amendment speech,7 and that punishment, in the form of eviction, if imposed by the state would unconstitutionally abridge First Amendment rights, it is equally clear that these rights are rights against government, not private parties. Consequently, before appellant can prevail on this theory she must show that the government is in some relevant sense responsible for inhibiting her right to petition for redress of grievances; she must show, in other words, the requisite "state action."8 Appellant seeks to overcome this obstacle by arguing that the use of courts to effect her eviction sufficiently implicates the state as to bring into play constitutional constraints. She relies on an unreported decision of the United States District Court for the Southern District of New York, where the court invoked just such a theory to support the issuance of a preliminary injunction restraining an alleged retaliatory rent increase. Tarver v. G. & C. Construction Corp., S.D.N.Y., November 9, 1964.
There can now be no doubt that the application by the judiciary of the state's common law, even in a lawsuit between private parties, may constitute state action which must conform to the constitutional strictures which constrain the government. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This may be so even where the court is simply enforcing a privately negotiated contract. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). But the nature and extent of the judicial involvement required to bring into play these constitutional constraints is unclear. The central case is, of course, Shelley v. Kraemer, where the Court ruled that judicial enforcement of private agreements containing restrictive covenants against selling to Negroes violated the Fourteenth Amendment's command that "[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws." But the contours of Shelley remain undefined and it is uncertain just how far its reasoning extends.9 Judge Greene declined to rest his opinion on Shelley for fear that if, for constitutional purposes, every private right were transformed into governmental action by the mere fact of court enforcement of it, the distinction between private and governmental action would be obliterated. He accepted the reasoning of Mr. Justice Black, who joined in the Shelley opinion but has since maintained that its doctrine applies only where, as in Shelley itself, the court is called upon to upset a transaction between a willing buyer and a willing seller.10 Others, however, have urged different interpretations of Shelley, ones which would extend its principle beyond its facts but would still leave certain private rights, even when judicially enforced, immune from the Constitution's restraints on government.
Some commentators have suggested that private action is subject to constitutional scrutiny only when the state has encouraged or sanctioned it.11 Others have gone further and suggested that at least where racial discrimination is involved the state denies the equal protection of the law when it does not act affirmatively to assure equal protection by legislating against privately initiated, as well as governmental, discrimination.12 But these commentators are careful to point out that Shelley should not be read to hold that a state cannot enforce any discrimination which it could not itself make.13 There is, on this view, unconstitutional action by inaction except in those situations where the Constitution itself demands inaction; that is, in those situations where the state could not legislate equality because to do so would impinge on the individual discriminator's countervailing rights of liberty, property and privacy.14 The state, through its police or courts, could aid an individual in his quest to keep Negroes from a dinner party in his home even though it could not keep Negroes from a courthouse cafeteria15 or even from a privately owned hotel solely on account of their race. Consequently this theory might dull, but it would not obliterate, the distinction between private and state action.
Were this analysis of state action by inaction under the equal protection clause unqualifiedly applied where the question was governmental action under the First Amendment, there is no doubt that Mrs. Edwards' eviction could not be sustained. Not only would the government have failed to protect her against private reprisals for the exercise of her First Amendment rights (and clearly it could constitutionally protect her if it chose to do so),16 but it would, through its court, actually be aiding the individual who seeks to intimidate the exercise of those rights.17 It may be, however, that what is state action under the Fourteenth Amendment is not always state action under the First. To begin with, the Reconstruction amendments were enacted with a particular purpose in mind: to eradicate forever the vestiges of slavery and the black codes.18 In addition, the language of the First Amendment, "Congress shall make no law * * *," is not as amenable as the Fourteenth Amendment is to the construction that there is state action by inaction or by judicial action which merely gives legal effect to privately made decisions. Indeed those who have expounded this theory of state action have been careful to limit their case to the area of racial discrimination.19
But this does not end the matter. In New York Times Co. v. Sullivan, supra, the state of Alabama neither forced nor even encouraged Police Commissioner Sullivan to sue the New York Times. It simply provided courts in which such a suit could be brought, and its common law provided the doctrine upon which the dispute would be settled. There was no suggestion in the Supreme Court's opinion that the doctrine was not fairly and honestly applied by the state court. Yet the Court, hardly pausing even to consider the question of state action,20 held that a libel judgment against the Times, on the facts of that case, unconstitutionally abridged the Times' First Amendment rights as incorporated in the Fourteenth Amendment's due process clause. The fact that Congress and the state legislature had "made no law" was apparently irrelevant to this determination.21
A state court judgment, then, even by adjudicating private lawsuits, may unconstitutionally abridge the right of free speech as well as the right to equal protection of the laws. Of course, the federal court review in Times was technically under the due process clause of the Fourteenth Amendment as it incorporates the First, while here the challenge is made under the First Amendment itself. But there is no reason to think that review under the First Amendment is more limited.22 In any case, review under the Fifth Amendment's due process clause would not be. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). And it may be that the more flexible concept of due process is preferable where the question is one involving First Amendment rights and the government, though perhaps sufficiently implicated in the abridgement to bring into play constitutional constraints, is not directly responsible for it. It may be instructive to borrow again from other state action theorists whose analyses, though concerned primarily with racial discrimination, are somewhat less rigid and therefore may transfer more comfortably from the area of racial discrimination under the Fourteenth Amendment into the context of First Amendment rights.
It has been suggested that there is state action, not only when an individual asserts a claim of right against a state, but also when he asserts a claim of right against the claims of right of other persons and the state resolves the conflict according to its policy of what is reasonable under the circumstances, i. e., according to its law.23 Once this "state action" is established, the question then becomes simply "whether the particular state action in the particular circumstances, determining legal relations between private persons, is constitutional when tested against the various federal constitutional restrictions on state action."24
The question in the instant case would then be whether a court can consistently with the Constitution prefer the interests of an absentee landlord25 in evicting a tenant solely because she has reported violations of the housing code to those of a tenant in improving her housing by resort to her rights to petition the government and to report violations of laws designed for her protection. On this theory, if it would be unreasonable to prefer the landlord's interest, it would also be unconstitutional.26 Mr. Justice Black, who is not prone to weigh interests where First Amendment rights are involved,27 seems to have taken just this approach in writing for the Court in Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), which, like the instant case, involved state-aided privately-initiated abridgement of First Amendment freedoms.28 The question before the Court in Marsh was "whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management." 326 U.S. at 502, 66 S.Ct. at 277. In answering it, Mr. Justice Black felt compelled to "balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion" and in doing so remained mindful "of the fact that the latter occupy a preferred position." 326 U.S. at 509, 66 S.Ct. at 280. He concluded that the state acted unconstitutionally in preferring the property rights of the town's owners to those of the defendant and the town's residents29 through the application of its criminal trespass statute to Mrs. Marsh. "Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand." Ibid.
Again it should be remembered that in Times the state did not initiate the action, nor did it encourage the private parties involved to do so. And in Marsh there could have been no prosecution without a private complaint. In both cases the state simply provided courts and laws to settle essentially private disputes.30 Where its settlement impinged on First Amendment freedoms, a balancing process was utilized on review to determine whether it did so unconstitutionally.31 But we need not undertake such a weighing of interests here or even decide if such a process is appropriate, for we find, as indicated in Part III, that Congress, by directing the enactment of the housing code, impliedly directed the court to prefer the interests of the tenant who seeks to avail himself of the code's protection.
Appellant argues that, even if Shelley and the concept of "state action" are interpreted narrowly, and if the judicial implementation of the D.C. Code to effect a retaliatory eviction does not violate her First Amendment rights, her eviction would be unconstitutional nonetheless because the right to petition the government and to report violations of law is constitutionally protected against private as well as governmental interference. There is strong support for this position. In Crandall v. State of Nevada, 73 U.S. (6 Wall.) 35, 18 L.Ed. 744 (1868), decided before the Fourteenth Amendment was enacted, the Court struck down Nevada's one-dollar tax on anyone leaving the state in part because the Court felt that such a tax might infringe the individual's right to travel to Washington to participate in, and seek redress from, the government. And in United States v. Cruikshank, 92 U.S. (2 Otto) 542, 23 L.Ed. 588 (1876), in dictum32 and in In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L. Ed. 1080 (1895), as holding, the Court was even more explicit in recognizing the right to petition the government for redress of grievances and the right to inform the government of violations of law as rights of federal citizenship arising from our constitutional system as a whole, not just from the First Amendment or from any other particular constitutional clause or provision. In Quarles the Supreme Court affirmed the conviction under the Civil Rights Act of a private citizen for conspiring to "injure, oppress, threaten, or intimidate [another] in the free exercise * * * of [a] right * * * secured to him by the Constitution or laws of the United States, or because of his having so exercised the same."33 The defendant and his accomplices had threatened and beaten one Worley for informing federal officers that the defendant was violating the federal liquor law. The defendant argued that Worley had no right to inform that was protectable against private interference. But the Court rejected this argument, stating that:
"The right of a citizen informing of a violation of law, like the right of a prisoner in custody upon a charge of such violation, to be protected against lawless violence, does not depend upon any of the Amendments to the Constitution, but arises out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action. * * *
"* * * [As the Court said in Ex parte Yarbrough, 110 U.S. 651, 662, 4 S.Ct. 152, 28 L.Ed. 274 (1884)]: `The power [to protect certain rights from private interference] arises out of the circumstance that the function in which the party is engaged, or the right which he is about to exercise, is dependent on the laws of the United States. * * * [I]t is the duty of that government to see that he may exercise this right freely, and to protect him from violence while so doing, or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself * * *.
* * * * * *
"The necessary conclusion is * * that this right is secured to the citizen by the Constitution of the United States * * *." 158 U.S. at 536-537, 15 S.Ct. at 961.
This right, appellant argues, is accordingly protected against private as well as governmental interference.34 It is on the basis of this theory that Judge Greene found that proof of a retaliatory purpose constituted a valid defense.
But though this argument from Quarles is persuasive, it is not conclusive, for at issue in Quarles was the applicability and constitutionality of the Civil Rights Act to punish private interferences with the right to report violations of law, not the questions, first, whether such interferences were themselves unconstitutional in the absence of remedial legislation, and second, if unconstitutional, what legal consequences attached to them. The DCCA rejected the argument for just this reason, saying that Quarles was a case where "Congress enacted special legislation to secure certain rights." 227 A.2d at 391. Presumably the legislation referred to is the Civil Rights Act, and the DCCA apparently felt that current civil rights statutes would not apply to this case. But the enforcement section of the Civil Rights Act provided remedies for the deprivation of rights secured by the Constitution or laws of the United States. It did not create new rights. And the Supreme Court held in Quarles that the right to report violations of law was a constitutional right protectable by federal legislation against private interference, not that it was itself a right created by the Civil Rights Act. It is this constitutional right that Mrs. Edwards is setting up as a defense to the landlord's action of eviction. It is not necessarily relevant, therefore, that because of the peculiar requirements of the civil rights statutes they may not provide her with additional affirmative civil35 or criminal remedies36 for violation of the same right.37
But we need not decide whether judicial recognition of this constitutional defense is constitutionally compelled. We need not, in other words, decide whether 45 D.C. CODE § 910 could validly compel the court to assist the plaintiff in penalizing the defendant for exercising her constitutional right to inform the govenment of violations of the law; for we are confident that Congress did not intend it to entail such a result.
45 D.C. CODE § 910, in pertinent part, provides:
"Whenever * * * any tenancy shall be terminated by notice as aforesaid [45 D.C. CODE § 902, see Note 1 supra], and the tenant shall fail or refuse to surrender possession of the leased premises, * * * the landlord may bring an action to recover possession before the District of Columbia Court of General Sessions, as provided in sections 11-701 to 11-749."
And 16 D.C. CODE § 1501, in pertinent part, provides:
"When a person detains possession of real property * * * after his right to possession has ceased, the District of Columbia Court of General Sessions * * * may issue a summons to the party complained of to appear and show cause why judgment should not be given against him for restitution of possession."
These provisions are simply procedural. They neither say nor imply anything about whether evidence of retaliation or other improper motive should be unavailable as a defense to a possessory action brought under them. It is true that in making his affirmative case for possession the landlord need only show that his tenant has been given the 30-day statutory notice, and he need not assign any reason for evicting a tenant who does not occupy the premises under a lease. But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant's report of housing code violations to the authorities.38 As a matter of statutory construction and for reasons of public policy,39 such an eviction cannot be permitted.
The housing and sanitary codes,40 especially in light of Congress' explicit direction for their enactment, indicate a strong and pervasive congressional concern to secure for the city's slum dwellers decent, or at least safe and sanitary, places to live.41 Effective implementation and enforcement of the codes obviously depend in part on private initiative in the reporting of violations. Though there is no official procedure for the filing of such complaints, the bureaucratic structure of the Department of Licenses and Inspections establishes such a procedure,42 and for fiscal year 1966 nearly a third of the cases handled by the Department arose from private complaints.43 To permit retaliatory evictions, then, would clearly frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington.44
As judges, "we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men." Ho Ah Kow v. Nunan, C.C.D.Cal., 12 Fed.Cas. 252, 255 (No. 6546) (1879). In trying to effect the will of Congress and as a court of equity we have the responsibility to consider the social context in which our decisions will have operational effect. In light of the appalling condition and shortage of housing in Washington,45 the expense of moving, the inequality of bargaining power between tenant and landlord,46 and the social and economic importance of assuring at least minimum standards in housing conditions,47 we do not hesitate to declare that retaliatory eviction cannot be tolerated. There can be no doubt that the slum dweller, even though his home be marred by housing code violations, will pause long before he complains of them if he fears eviction as a consequence. Hence an eviction under the circumstances of this case would not only punish appellant for making a complaint which she had a constitutional right to make, a result which we would not impute to the will of Congress simply on the basis of an essentially procedural enactment, but also would stand as a warning to others that they dare not be so bold, a result which, from the authorization of the housing code, we think Congress affirmatively sought to avoid.
The notion that the effectiveness of remedial legislation will be inhibited if those reporting violations of it can legally be intimidated is so fundamental that a presumption against the legality of such intimidation can be inferred as inherent in the legislation even if it is not expressed in the statute itself.48 Such an inference was recently drawn by the Supreme Court from the federal labor statutes to strike down under the supremacy clause a Florida statute denying unemployment insurance to workers discharged in retaliation for filing complaints of federally defined unfair labor practices.49 While we are not confronted with a possible conflict between federal policy and state law, we do have the task of reconciling and harmonizing two federal statutes so as to best effectuate the purposes of each.50 The proper balance can only be struck by interpreting 45 D.C. CODE §§ 902 and 910 as inapplicable where the court's aid is invoked to effect an eviction in retaliation for reporting housing code violations.51
This is not, of course, to say that even if the tenant can prove a retaliatory purpose she is entitled to remain in possession in perpetuity. If this illegal purpose is dissipated, the landlord can, in the absence of legislation52 or a binding contract, evict his tenants or raise their rents for economic or other legitimate reasons, or even for no reason at all.53 The question of permissible or impermissible purpose is one of fact for the court or jury, and while such a determination is not easy, it is not significantly different from problems with which the courts must deal in a host of other contexts, such as when they must decide whether the employer who discharges a worker has committed an unfair labor practice because he has done so on account of the employee's union activities.54 As Judge Greene said, "There is no reason why similar factual judgments cannot be made by courts and juries in the context of economic retaliation [against tenants by landlords] for providing information to the government."
Reversed and remanded.
McGOWAN, Circuit Judge (concurring except as to Parts I and II):
The considerations bearing upon statutory construction, so impressively marshalled by Judge Wright in Part III of his opinion, have made it unnecessary for me to pursue in any degree the constitutional speculations contained in Parts I and II; and it is for this reason that I do not join in them. The issue of statutory construction presented in this case has never seemed to me to be a difficult one, nor to require for its resolution the spur of avoidance of constitutional questions. A Congress which authorizes housing code promulgation and enforcement clearly cannot be taken to have excluded retaliatory eviction of the kind here alleged as a defense under a routine statutory eviction mechanism also provided by Congress.
DANAHER, Circuit Judge (dissenting):
Basically at issue between my colleagues and me is a question as to the extent to which the power of the court may here be exercised where by their edict the landlord's right to his property is being denied. They concede as they must1
"that in making his affirmative case for possession the landlord need only show that his tenant has been given the 30-day statutory notice, and he need not assign any reason for evicting a tenant who does not occupy the premises under a lease."
That fundamental rule of our law of property must give way, it now develops. My colleagues so rule despite the absence of a statutory prescription of discernible standards as to what may constitute "violations," or of provision for compensating2 the landlord for the deprivation of his property. They say that the court will not "frustrate the effectiveness of the housing code as a means of upgrading the quality of housing in Washington." Since they recognize that there is an "appalling condition and shortage of housing in Washington,"3 they say the court must take account of the "social and economic importance of assuring at least minimum standards in housing conditions." So to meet such needs, the burden would now be met, not pursuant to a congressionally prescribed policy, with adequate provision for construction or acquisition costs, or for compensation to property owners, but by private landlords who will be saddled with what should have been a public charge.
Note how my colleagues achieve that result as they rule:
"But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant's report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted."
Just as do my colleagues, I deplore the effort of any landlord for a base reason to secure possession of his own property, but if his right so to recover in accordance with our law is to be denied, Congress should provide the basis. Appropriate standards as a pre-condition thus could be spelled out in legislation and just compensation thereupon be awarded if found to be due.4
I am not alone in my position, I dare say, as I read the Congressional Record for March 13, 1968, page H 1883. In President Johnson's message to the Congress he said:
"One of the most abhorrent injustices committed by some landlords in the District is to evict — or threaten to evict — tenants who report building code violations to the Department of Licenses and Inspections.
"This is intimidation, pure and simple. It is an affront to the dignity of the tenant. It often makes the man who lives in a cold and leaking tenement afraid to report those conditions.
"Certainly the tenant deserves the protection of the law when he lodges a good faith complaint.
"I recommend legislation to prevent retaliatory evictions by landlords in the District." (Emphasis added.)
He seems to think as do I that congressional action is required.5 It may be doubted that the President would so have recommended legislation except upon the advice of the legal authorities upon whom he relies. Certainly he is aware of the due process protective considerations which must be accorded to a landlord, even one who might be guilty of "an affront to the dignity" of a tenant. He must know that a community burden is not to be borne alone by landlords, charged with allegedly "retaliatory"6 evictions because of complaints of "violations," undefined and vague and lacking in standards.
That my colleagues ultimately upon reflection began to doubt the sufficiency of their position seems clear enough, for they observe:
"This is not, of course, to say that even if the tenant can prove a retaliatory purpose she is entitled to remain in possession in perpetuity." (Emphasis added.)
"Of course" not, I say; not at all as the law has read, until now, I may add. My colleagues continue:
"If this illegal purpose is dissipated, the landlord can, in the absence of legislation or a binding contract, evict his tenants or raise their rents for economic or other legitimate reasons, or even for no reason at all."
And so, it may be seen according to the majority, we need never mind the Congress, the aid of which the President would invoke. We may disregard, even reject, our law of such long standing. We will simply leave it to a jury to say when a landlord may regain possession of his own property, although "the determination is not easy," my colleagues concede.7
I leave my colleagues where they have placed themselves.