Sylvester Madison v. William H. Jeffers

BUTZNER, Circuit Judge,

(dissenting) :

Were this case concerned only with an evaluation of the district court’s findings of fact it is unlikely that I would dissent. I differ from my Brothers in the interpretation of the Civil Rights Act of 1866 1 and the Fair Housing Act of 1968.2 I would construe these Acts to afford relief to a black person whose offer to purchase property is rejected when the owner, having actual or imputed knowledge of the race of the prospective purchaser, withdraws the property from the market without a business or other rational purpose before the transaction can be completed in the ordinary course of trading. Cf. Smith v. Sol D. Adler Realty Co., 436 F.2d 344 (7th Cir. 1971). Viewing the statutes in this light, I would reverse for the following reasons.

I

Undue significance has been attributed to the buyers’ inability to prove that the owner had actual notice of the buyers’ race before the owner told his agent that the property was withdrawn from sale. But it is not disputed that the owner’s agent knew the buyers were black. I would impute this knowledge to the owner. W. Seavey, Law of Agency § 97 (1964). Stated negatively, I would not interpret the Acts to allow a person who has put his property on the market to shield himself from knowledge of the race of prospective purchasers by interposing his agent.

*118II

When a person announces withdrawal of property from the market after he, or his agent, learns that the prospective purchaser is black, I would require him to prove that withdrawal served a business or other rational purpose. Objective facts, not subjective intent, must be proved to establish business necessity under Title VII of the Civil Rights Act of 1964. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Similarly, in housing discrimination cases brought under the Civil Rights Act of 1866 and the Fair Housing Act of 1968, objective facts should be required to sustain the owner’s claim of a business or other rational purpose for withdrawing property from the market. Cf. Stevens v. Dobs, Inc., 483 F.2d 82 (4th Cir. 1973). By relying on the owner’s subjective intent to minimize his taxes, instead of requiring objective facts, the district court used an erroneous legal standard to undergird its finding that the owner withdrew the lots from the market because of legitimate tax reasons.

Even though tax avoidance 'may qualify as a business purpose, the owner’s claim was not supported by objective facts. Cross-examination showed the owner had been misinformed about the-tax laws and exposed the lack of a factual basis for the explanation that he was guarding against subjecting profit from the sale to taxation as ordinary income.

The owner’s claim that' the sale would place him in an unfavorable tax bracket was never established by disclosure of his tax returns or by sufficient data to show what tax bracket he was in and what bracket the sale would have put him in. While the record discloses the gross sale price of the lots, the owner did not reveal his costs or his estimated expenses of sale. No objective facts established his profit or its impact on his taxes. Moreover, although the owner made few sales each year, he produced no evidence that he had ever previously refused to sell to a bona fide purchaser to avoid taxes.

The owner’s professed concern about even the slightest increase in his taxes is belied by the fact that after he withdrew the lots from the market, he joined his partners in selling another piece of property at a taxable profit during the tax year in question. The tax on this transaction was small, but not demonstrably smaller than the tax on the sale of the lots to the Madisons would have been on a deferred purchase plan similar to the plans used by the owner on other occasions. Newspaper advertisements of the lots, which were run before and after the owner told the agent the lots were not currently for sale, stated that terms were available.

III

Because the owner withdrew the property from the market without proving a business or other rational purpose, I would hold that the property was on the market when the buyers made their firm offer to purchase it one week after they had inspected it. It is not unusual for prospective purchasers of real estate to defer their final decision for a reasonable time after they initially inspect the property. I think the Acts should be construed broadly enough to embrace routine transactions made in the ordinary course of dealing. Otherwise, a black purchaser must make a firm offer to purchase when he first sees the property or risk its immediate withdrawal from the market. By deferring a firm offer, the prospective purchaser — whether he be black or white — may lose the opportunity to buy because another person has bona fidely acquired the property in the meantime. The black purchaser, however, should not suffer the added risk of having the property withdrawn for an unsubstantiated reason immediately after his race is known.

IV

Apart from the owner’s refusal to sell, the record discloses other unlawful conduct. The Fair Housing Act of 1968 *119makes it unlawful for a person to refuse to negotiate for the sale of a residential lot because of race. 42 U.S.C. §§ 3602(b) and 3604(a) (1970).3 The record discloses adequate proof that after the owner learned that the prospective purchasers were black persons, he flatly rejected their offer. He did not make any counter offer either to defer the sale to the next tax year or to arrange terms, as he did in other instances, that would have accommodated his professed desire to avoid taxes during the current year. I would hold that this conduct constitutes- a refusal to negotiate in violation of the Act.

V

Two other points, though minor, merit comment. It has been suggested that the Madison’s ease would be immeasurably stronger had they renewed their offer early in the next tax year instead of complaining to the federal government. Congress recognized the desirability of resolving complaints of housing discrimination by “conference, conciliation, and persuasion.” 42 U.S.C. § 3610(a) (1970). Neither the Act nor its legislative history justifies drawing an adverse inference against the complainant because he has followed the path of conciliation that Congress has charted.

Actually, Mr. and Mrs. Madison did attempt to purchase the property in the following year at a time when the excuse of taxes was no longer available to the owner. At the conciliation meeting in May 1972, the owner was asked to sell to them. He again refused, this time complaining about their attitude. The district court excluded this evidence. I believe its ruling was erroneous. The Fair Housing Act provides in part:

“Nothing said or done in the course of such informal endeavors may be made public or used as evidence in a subsequent proceeding under this subchap-ter without the written consent of the persons concerned.” 42 U.S.C. § 3610(a) (1970).

Here both parties evidenced their written consent by their pleadings. The buyer’s complaint alleges the incident, and the owner’s answer substantially admits it.4

VI

I would not attribute to the owner an absence of racial motivation because he has sold other lots to black persons. The owner had sold, or contracted to sell, a number of lots from the tract containing the lots that Mr. and Mrs. Madison sought. All of these transactions were with white persons. From land that was nearby, but not contiguous to the property in litigation, the owner and his partners had sold numerous lots, including some to black persons. Sales to black persons from noncontiguous property afford a questionable basis for attributing an absence of racial motivation to a real estate operator who has sold lots from another piece of property only to white persons. Indeed, if any relevance could be attached to the noncon-tiguous sales, the geographic racial selectivity disclosed by this record suggests, rather than negates, discrimination.

*120ORDER DENYING REHEARING

Upon consideration of the petition for rehearing and of the suggestion for rehearing in banc, the court having been polled and less than a majority of the panel having voted for a rehearing and less than a majority of the court having voted for a rehearing in banc.

It is now ordered that the petition for rehearing and the suggestion for rehearing in banc be, and they hereby are, denied.

WINTER, CRAVEN, and BUTZNER, Circuit Judges, dissent.

. The Civil Rights Act of 1866 provides in part:

“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.” 42 U.S.C. § 1982 (1970).

The Act “bars all racial discrimination, private as well as public, in the sale or rental of property . . . . ” Jones v. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968).

. Title VIII of the Civil Rights Act of 1968 [42 U.S.C. § 3601 et seq. (1970)] prohibits public and private discrimination on the basis of race in the sale of housing by private owners, real estate brokers, and financial institutions. Section 3604(a) states that it is unlawful “To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.” Section 3602(b) includes vacant residential lots in the definition of “dwelling.”

. Bee note 2, supra.

. 'The buyers alleged:

“[A] meeting was held on May 1, 1972 at which time the plaintiffs again asked to purchase the said piece of land. Again the defendant refused and this time cited the plaintiffs’ ‘attitude’ as his reason.”

The owner answered:

“[A]t the conference, defendant was asked to sell a lot to the complainant Sylvester Madison which because of the complainant’s attitude and trouble he had caused the defendant, as well as the fact that he had not requested to purchase the property after the first of the year, the defendant refused.”

At the trial, the buyers again expressed a willingness and ability to buy the lots. The court, however, sustained an objection to a question seeking to ascertain whether the owner was willing to sell.