The complaint alleges both that Negroes and Puerto Ricans were discriminated against in connection with relocation and that the relocation standards of section 105 (c) were generally not met for Negro and Puerto Rican displacees. These allegations clearly raise questions of fact common to the class which plaintiffs represent. The fact that some members of the class were personally satisfied with the defendants' relocation efforts is irrelevant. (Cf. Potts v. Flax, 313 F.2d 284, 288– 289 (5 Cir. 1963).) 42 The association plaintiffs were denied standing below because they are "not themselves members of the classes whose rights they claim to be asserting." 42 F.R.D. at 622. We think that the reasons for requiring an individual plaintiff in a class action to be a member of the class do not necessarily preclude an association from representing a class where its raison d'etre is to represent the interests of that class. We do not decide, however, whether the association plaintiffs have standing. The answer to that question depends on whether there is a compelling need to grant them standing in order that the constitutional rights of persons not immediately before the court might be vindicated. See NAACP v. State of Alabama, ex rel. Patterson, (357 U.S. 449, 458460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).43 It appears to us that the individual plaintiffs can adequately represent the interests of all members of the relevant class, but we will not preclude the plaintiffs from trying to show to the district court's satisfaction that it is only the association plaintiffs which can perform this function. Judgment reversed. Remanded for further proceedings not inconsistent with this opinion. HAYS, Circuit Judge (dissenting): I would affirm the determination of the district court. The issues which the plaintiffs offer are not justiciable and the remedies they seek are not within the power of the court to grant. (See Perkins v. Lukens Steel Co., 310 U.S. 113, 131-132, 60 S.Ct. 869, 879, 653 (4 Cir. 1967), that unless abuse is shown the trial court's decision as to whether or not a proper class action has been brought is final. The Fourth Circuit said nothing of the kind in that case. The Court was addressing itself specifically to the question whether the number of members of the class was sufficiently large to meet the requirement of Rule 23(a)(1) that the class be so numerous that joinder of all members is impracticable. That is a question of fact which the court naturally held to be within the competence of the District Court to determine. It is alleged in this case that the class is sufficiently numerous, and the District Court did not find otherwise. "We further hold that the requirements of Rule 23(b) have been met. The District Court concluded that Rule 23(b)(2) was not satisfied because the specific relief requested by the plaintiffs was not, in its view, appropriate. We have already given our reasons for holding that the court is not limited to granting the relief requested, and it appears to us that final injunctive or declaratory relief with respect to the class as a whole would be appropriate if the allegations of the complaint are proved. We reject the local defendants' contention that an association cannot represent the rights of its members unless the interests of the association itself are involved. In NAACP v. State of Alabama, ex rel. Patterson, the Supreme Court specifically referred to the likelihood that the association itself would be adversely affected as a "further factor" pointing towards the holding of standing. 357 U.S. at 459-60, 78 S.Ct. at 1163. 84 L.Ed. 1108 (1940) ("The interference of the courts with the performance of the ordinary duties of the executive departments of the Government, would be productive of nothing but mischief," quoting Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 516, 10 L.Ed. 559 (1840)); Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954) ("We do not sit to determine whether a particular housing project is or is not desirable").) The holding that plaintiffs do not have standing to bring the action is another formulation of the same principles. See Green Street Association v. Daley (373 F.2d 1 (7th Cir.), cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967)); Berry v. Housing and Home Finance Agency, (340 F.2d 939 (2d Cir. 1965) (per curiam)); Johnson v. Redevelopment Agency, (317 F.2d 872 (9th Cir.), cert. denied, 375 U.S. 915, 84 S.Ct. 216, 11 L.Ed.2d 154 (1963)); Pittsburgh Hotels Association v. Urban Redevelopment Authority (309 F.2d 186 (3d Cir. 1962), cert. denied sub. nom.) Hilton Hotels Corp. v. Urban Redevelopment Authority (372 U.S. 916, 83 S.Ct. 730, 9 L.Ed.2d 723 (1963)); Taft Hotel Corp. v. Housing and Home Finance Agency, (262 F.2d 307 (2d Cir. 1958) (per curiam), cert. denied, 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959)); Allied-City Wide, Inc. v. Cole, (97 U.S. App.D.C. 277, 230 F.2d 827 (1956) (per curiam)). The Federal courts cannot administer the housing program. JAMES v. VALTIERRA 402 U.S. 137 (1971) APPEAL FROM THE U.S. DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA APRIL 26, 1971 OPINION OF THE COURT Mr. Justice BLACK delivered the opinion of the Court. These cases raise but a single issue. It grows out of the United States Housing Act of 1937, 42 U.S.C. 1401 et seq., which established a Federal housing agency authorized to make loans and grants to State agencies for slum clearance and low-rent housing projects. In response, the California Legislature created in each county and city a public housing authority to take advantage of the financing made available by the Federal Housing Act. See California Health and Safety Code section 34240. At the time the Federal legislation was passed the California constitution had for many years reserved to the State's people the power to initiate legislation and to reject or approve by referendum any act passed by the State legislature. California constitution article IV, section 1. The same section reserved to the electors of counties and cities the power of initiative and referendum over acts of local government bodies. In 1950, however, the State supreme court held that local authorities' decisions on seeking Federal aid for public housing projects were "executive" and "administrative," not "legislative," and therefore the State constitution's referendum provisions did not apply to these actions. Within 6 months of that decision the California voters adopted article XXXIV of the State constitution to bring public housing decisions under the State's referendum policy. The article provided that no low-rent housing project should be developed, constructed or acquired in any manner by a State public body until the project was approved by a majority of those voting at a community election.2 1 1 Housing Authority v. Superior Court, 35 Cal. 2d 550, 557-558 (1950). 2 * "Section 1. No low rent housing project shall hereafter be developed, constructed, or acquired in any manner by any state public body until, a majority of the qualified electors of the city, town or county, as the case may be, in which it is proposed to develop, construct, or acquire the same, voting upon such issue, approve such project by voting in favor thereof at an election to be held for that purpose, or at any geenral or special election. "For the purpose of this article the term 'low rent housing project' shall mean any development composed of urban or rural dwellings, apartments or other living accommodations for persons of low income, financed in whole or in part by the Federal Government or a state public body or to which the Federal Government The present suits were brought by citizens of San Jose, Calif., and San Mateo County, localities where housing authorities could not apply for Federal funds because low-cost housing proposals had been defeated in referendums. The plaintiffs, who are eligible for low-cost public housing, sought a declaration that article XXXIV was unconstitutional because its referendum requirement violated: 1. The supremacy clause of the U.S. Constitution; 3. The Equal protection clause. A three-judge court held that article XXXIV denied the plaintiff's equal protection of the laws and it enjoined its enforcement; 313 F. Supp. 1 (ND Cal. 1970). Two appeals were taken from the judgment, one by the San Jose City Council, and the other by a single member of the council. We noted probable jurisdiction of both appeals: 398 U.S. 949 (1970); 399 U.S. 925 (1970). For the reasons that follow, we reverse. The three-judge court found the supremacy clause argument unpersuasive, and we agree. By the Housing Act of 1937 the Federal Government has offered aid to States and local governments for the creation of low-rent public housing. However, the Federal legislation does not purport to require that local governments accept this or to outlaw local referendums on whether the aid should be accepted. We also find the privileges and immunities argument without merit. While the district court cited several cases of this court, its chief reliance plainly rested on Hunter v. Erickson, 393 U.S. 385 (1969). The first paragraph in the district court's decision stated simply: "We hold article XXXIV to be unconstitutional. Hunter v. Erickson... The court below erred in relying on Hunter to invalidate article XXXIV. Unlike the case before us, Hunter rested on the conclusion that Akron's referendum law denied equal protection by placing "special burdens on racial minorities within the governmental process." Id., at 391. In Hunter the citizens of Akron had amended the city charter to require that any ordinance regulating real estate on the basis of race, color, religion, or national origin could not take effect without ap proval by a majority of those voting in a city election. The court held that the amendment created a classification based upon race because it required that laws dealing with racial housing matters could take effect only if they survived a mandatory referendum while other housing ordinances took effect without any such special election. The opinion noted: Because the core of the 14th amendment is the prevention of meaningful and unjustifiable official distinctions based on race, [citing a group of racial discrimination cases] racial classifications are "constitutionally suspect". . . and subject. to the "most rigid scrutiny. . . ." They "bear a far heavier burden of justification than other classifications. . . .” Id., at 391-392. or a state public body extends assistance by supplying all or part of the labor, by guaranteeing the payment of liens, or otherwise.... "For the purposes of this article only 'persons of low income' shall mean persons or families who lack the amount of income which is necessary (as determined by the state public body developing, constructing, or acquiring the housing project) to enable them, without financial assistance, to live in decent, safe and sanitary dwellings, without overcrowding. . . ." The court concluded that Akron had advanced no sufficient reasons to justify this racial classification and hence that it was unconstitutional under the 14th amendment. Unlike the Akron referendum provision, it cannot be said that California's article XXXIV rests on "distinctions based on race." Id., at 391. The article requires referendum approval for any low-rent public housing project, not only for projects which will be occupied by a racial minority. And the record here would not support any claim that a law seemingly neutral on its face is in fact aimed at a racial minority. Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960). The present case could be affirmed only by extending Hunter, and this we decline to do. California's entire history demonstrates the repeated use of referendums to give citizens a voice on questions of public policy. A referendum provision was included in the first State constitution, California constitution of 1849, article VIII, and referendums have been a commonplace occurence in the State's active political life.3 Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice. Nonetheless, appellees contend that article XXXIV denies them equal protection because it demands a mandatory referendum while many other referendums only take place upon citizen initiative. They suggest that the mandatory nature of the article XXXIV referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage. But of course a lawmaking procedure that "disadvantages" a particular group does not always deny equal protection. Under any such holding, presumably a State would not be able to require referendums on any subject unless referendums were required on all, because they would always disadvantage some group. And this court would be required to analyze governmental structures to determine whether a gubernatorial veto provision or a filibuster rule is likely to "disadvantage" any of the diverse and shifting groups that make up the American people. Furthermore, an examination of California law reveals that persons advocating low-income housing have not been singled out for mandatory referendums while no other group must face that obstacle. Mandatory referendums are required for approval of State constitutional amendments, for the issuance of general obligation long-term bonds by local governments, and for certain municipal territorial annexations. See California constitution article XVIII, article XIII, section 40; article XI, section 2 (b). California statute books contain much legislation first enacted by voter initiative, and no such law can be repealed or amended except by referendum. California constitution article IV, section 24 (c). Some California cities have wisely provided that their public parks may not be alienated without mandatory referendums, see, for example, San Jose Charter, section 1700. The peopleof California have also decided by their own vote to require referendum approval of low-rent public housing projects. This procedure insures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax See, e.g., Crouch, Winston W. "The Initiative and Referendum in California," The Haynes Foundation, Los Angeles, 1950. |