ILNews

Justices split on rental restriction case

Michael W. Hoskins
January 1, 2008
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In a ruling that could be the first of its kind in the nation, a divided Indiana Supreme Court Thursday afternoon reversed a lower court's ruling that a Kokomo subdivision's covenant restricting rentals violated the federal Fair Housing Act because of potential racial implications.

The state's highest court has been quiet on the issue since hearing arguments in October 2006, but it simultaneously decided to grant transfer and issue an opinion in the case of Villas West II of Willowridge v. Edna McGlothin, No. 34S02-0805-CV-266. The case involved a covenant that the Indiana Court of Appeals described as being "subterfuge for excluding minorities from renting homes" and a case of first impression that could affect how neighborhoods across the state implement no-rent provisions.

More than two years ago, the lower appellate court had upheld the trial judge's determination about the rental restriction. But a majority of the justices disagreed that the owner challenging the restriction, Edna McGlothin, proved any racial disparate impact.

The bottom line: the subdivision's no-lease covenant can stay in place.

"This record does not support a claim under a disparate impact theory," Chief Justice Randall T. Shepard wrote, joined by Justices Brent Dickson and Theodore Boehm. Justices Robert D. Rucker and Frank Sullivan dissented, voting to affirm the trial court.

The suit arose when the homeowners association sued McGlothin in 2002 for renting her residence in violation of a covenant barring rentals in the community to anyone other than family members. Algy and Edna McGlothin had bought the home in 1996. The developer controlled the association until turning it over to a board of homeowners in May 2000, but through their daughter the McGlothins had started leasing the home in 1998. That person rented until 2002, when the homeowner-controlled association notified the owner that they had violated the covenant. McGlothin had moved into a nursing home after her husband's death and needed the rental income to qualify for Medicaid and finance her care. The association sued her - as well as her estate after she died - and argued that the rental ban was needed to protect property values within the community and was consistent with the association's obligation to do so.

McGlothin countersued, arguing that the covenant violated the Fair Housing Act because it had a disparate impact on blacks. Howard Superior Judge Stephen Jessup ruled against the association, and the Court of Appeals upheld that decision in January 2006, holding that the covenant violates the federal Fair Housing Act. The association appealed.

But in their ruling, justices noted the trial court ruling was "clearly erroneous" because it found no "legitimate non-discriminatory reason" for the covenant despite undisputed evidence and expert testimony in the record showing that owners maintain property better than renters.

The court reflected on multiple jurisdictions' handling of how to determine whether any disparate impact had been proven, delving into federal caselaw in five of the 15 pages of the opinion. The majority noted that there is wide agreement in the federal Circuit courts that the FHA allows disparate impact claims but that there's no consensus about the proper framework for analyzing such a claim, and the U.S. Supreme Court hasn't addressed that issue.

A main federal precedent questioned, and ultimately rejected by the majority, was Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283 (7th Cir. 1977), which is known as "Arlington Heights II." The majority notes that it isn't bound by federal precedent and that it finds Arlington Heights II "doctrinally unsound" in how it outlines a procedure for establishing the burden each party must meet. Ultimately, it settled on its own framework.

"In sum, to establish a right to disparate impact recovery under the FHA, a plaintiff must establish a prima facie case by demonstrating that a policy or practice actually or predictably has a significantly adverse or disproportionate impact on a protected class," Chief Justice Shepard wrote. "To rebut this showing, the defendant must demonstrate that its policy or practice has a manifest relationship to a legitimate, nondiscriminatory interest. The plaintiff may then overcome the defendant's showing by demonstrating that a less discriminatory alternative would serve the defendant's legitimate interest equally well."

Applying that framework to the Villas West II case, justices determined that McGlothin's evidence left "something to be desired" in proving that the no-lease covenant would predictably and disproportionately affected blacks, but it proceeded on the basis that the prima facie case was established. Next, it looked at the HOA's demonstration that it had a legitimate, non-discriminatory reason for the rule by considering expert testimony that renters don't maintain homes as well as owners do and, therefore, excluding renters helps maintain property values. Lastly, the justices looked at McGlothin's rebuttal claim that other covenants helped maintain the community and property values.

Chief Justice Shepard wrote that other property-maintenance covenants - rules to maintain windows and fixtures, maintain lawns, clear trash, signs, and non-working vehicles - can be a less discriminatory alternative to no-lease covenants, and that owners typically do take more pride in their properties. He relied on expert testimony and evidence that was undisputed at trial and noted these other covenants are not an equally effective way to address the problem of divided interests in rental property.

In the dissent, Justices Rucker and Sullivan pushed to not abandon the 30-year-old precedent from the 7th Circuit Court of Appeals that much of the case's analysis of disparate impact relied upon.

"The majority works overtime and spends much ink to argue that Arlington Heights II is flawed and should not be followed," Justice Rucker wrote. "Other than to make it exceedingly more difficult for legitimate victims of housing discrimination to press their claims, I see no reason to abandon this precedent."

Now, the Kokomo case goes back to Judge Jessup to decide whether any intentional discrimination occurred and if any relief is needed.

"We find ourselves unable to discern whether relief is appropriate on McGlothin's intentional discrimination claim," the court wrote. "The need for fair adjudication suggests the desirability of remanding for further evidence and findings."
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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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