Appeal by 11 Cornwell Company from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, and from various pretrial orders of that court, George C. Pratt, Judge. Judge Pratt found that the State of New York had standing to sue in its parens patriae capacity, that the State had stated a sufficiently substantial federal claim under 42 U.S.C. § 1985(3) to permit the exercise of jurisdiction over a pendent state claim, and that the appellant was not entitled to a jury trial. Judge Mishler, after a trial, found that the State had prevailed on its state-law claim. Affirmed. Cross-appeal from Judge Mishler's denial of the State's request for attorney's fees. Affirmed, Oakes, Circuit Judge, dissenting.
Lumbard, Moore, and Oakes, Circuit Judges. Lumbard, Circuit Judge (concurring, and writing for the court on the cross appeal).
11 Cornwell Company, a partnership owning a house, appeals from a judgment and various pretrial orders in favor of the State of New York, suing as parens patriae on behalf of mentally retarded citizens. The State cross-appeals from that part of the judgment denying its request for attorneys' fees. We affirm on the appeal and, with the author of this opinion dissenting, affirm on the cross-appeal.
The State of New York filed suit in the United States District Court for the Eastern District of New York on August 1, 1980, on behalf of its mentally retarded citizens, alleging that 11 Cornwell had violated the 1871 Civil Rights Act, 42 U.S.C. § 1985(3), and the New York Human Rights Law, N.Y. Exec. Law § 296(5). The State alleged that upon learning that the Office of Mental Retardation and Developmental Disabilities (OMRDD) was planning to purchase the house at 11 Cornwell Street in Rockville Centre, New York, for use as a community residence for the retarded, a group of neighbors formed the partnership in order to prevent OMRDD from purchasing the house. The State argued that the partnership's purchase of the property, and refusal to sell to OMRDD even though the property was offered for sale to the general public, constituted a conspiracy to prevent and hinder the State from providing the mentally retarded with equal protection of the laws (42 U.S.C. § 1985(3)), a conspiracy to deny the mentally retarded equal protection of the laws (42 U.S.C. § 1985(3)), and discrimination on the basis of disability in the sale of housing (N.Y. Exec. Law § 296(5)(a)). The State sought declaratory and injunctive relief, damages, attorneys' fees, and costs.
On February 18, 1981, Judge George C. Pratt denied 11 Cornwell's motion to dismiss the State's complaint for lack of standing and lack of federal jurisdiction. 508 F. Supp. 273 (E.D.N.Y. 1981). He found that the State had standing in its parens patriae capacity to bring the suit, id. at 277, that the complaint stated a federal cause of action under the "preventing or hindering" clause of 42 U.S.C. § 1985(3), 508 F. Supp. at 276, and that he would exercise pendent jurisdiction over the state-law claim, id. On August 7, 1981, Judge Pratt denied the parties' cross-motions for summary judgment, stating that the partnership's "state of mind," and the amount of damages, were contested issues of fact. After the State withdrew with prejudice its request for damages, Judge Pratt granted the State's motion to strike 11 Cornwell's demand for a jury trial.
The case was then reassigned to Judge Mishler, who after hearing evidence issued a Memorandum of Decision and Order. Judge Mishler found that in late 1979 an official of OMRDD determined that there was need for a facility for mentally retarded adults in Rockville Centre, and learned that the house at 11 Cornwell Street was for sale. Melvyn and Anne Samuels, the property's owners, were advised of OMRDD's interest in December 1979. In January 1980 they quoted a price of $135,000 and invited OMRDD to make an offer; through a real estate broker OMRDD transmitted an offer of $135,000 and was advised on February 1, 1980, that the Samuels had accepted the offer.
OMRDD advised the mayor of Rockville Centre of its plans on February 19, 1980, pursuant to New York Mental Hygiene Law § 41.34. Shortly thereafter, as found by the court, about fifty neighbors attended a meeting called by Sidney Young, a real estate attorney whose house happened to adjoin that of the Samuels', to discuss the proposed community residence for the retarded. Other meetings followed, culminating in Young's designation as a spokesman for a group of neighbors interested in purchasing the Samuels' property. Young offered Mr. Samuels $120,000 on March 9; on March 10 Samuels suggested a price of $125,000 and then reached agreement with Young on a price of $122,500.
The neighbors' group had also decided to call a broader community meeting to discuss its concerns about the proposed residence for the retarded. This meeting was scheduled for March 11, to precede by one week the official meeting at which OMRDD was to explain the program and answer questions. Following the community meeting, during which the neighbors' plan to purchase the Samuels' house was not revealed, Young privately solicited neighbors to join the group. On March 14 the contract of sale was signed by Young "as nominee." Mrs. Samuels, the owner of record, then notified OMRDD that she had contracted to sell the property to another. On May 8, 1980, eighteen partners executed a certificate of partnership under the name 11 Cornwell Company. This partnership, the court found,
purchased 11 Cornwell Street, intending to resell it to a purchaser who would occupy it as a single family unit. . . . Defendant advertised the house for sale in the New York Times for $122,500. Prospective purchasers responding to the ad were advised by defendant that it was offered below the market price to defeat New York's plan to use it as a community residence for the mentally retarded. OMRDD's repeated offers to purchase the house from defendant . . . met with negative responses.
Based on these findings the court held that the State's federal claim was substantial. Noting that "the preferred procedure is to first consider the state claim" (citing Hagans v. Lavine, 415 U.S. 528, 546, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974)), the court turned to the claim based on the New York Human Rights Law, N.Y. Exec. Law § 296(5)(a) (1) ("unlawful . . . to discriminate against any person because of his . . . disability . . . in the . . . privileges of the sale . . . of any . . . housing accommodation . . ."). The court held that 11 Cornwell's actions "denied [a] housing accommodation to mentally retarded citizens because of their disability" in violation of that section pursuant to id. § 297 and ordered 11 Cornwell to convey the property to OMRDD for $122,500. It is from this judgment and the certain pretrial orders that 11 Cornwell appeals.
Judge Mishler also noted in its November 23 decision that the State "would be entitled to an award of attorney's fees under [42 U.S.C.] § 1988 if it were a private litigant." Upon examining section 1988 and its legislative history, however, the court held that a sovereign such as the State could not recover its attorneys' fees. From this decision the State cross-appeals.
Judge Pratt correctly held that the State had standing to bring this suit in its parens patriae capacity. As he noted, "representation of mentally disabled persons is the paradigm case for parens patriae standing." People of the State of New York v. 11 Cornwell Co., 508 F. Supp. 273, 277 (E.D.N.Y. 1981) (denying motion to dismiss complaint). This is supported by Blackstone's classic definition of parens patriae standing to the effect that the sovereign or his representative was "'the general guardian of all infants, idiots, and lunatics,'" and the superintendent of "'all charitable uses in the ...