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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION


THE FAIR HOUSING COUNCIL OF
RIVERSIDE COUNTY, INC.,
CYNTHIA BARROS, ROGER
BARROS, and LORI DILLARD
Individually and on behalf
of the GENERAL PUBLIC
     Plaintiffs,

v.

No. SACV 00-988-DOC (ANx)

WILLIAM DAVID WINGO and
KAREN WINGO CIPRIANO,
Individually and doing
business as WINGO
PROPERTIES and VINCENT
STANCYK
     Defendants

___________________________________


NOTICE AND MOTION TO INTERVENE
MEMORANDUM OF POINTS AND AUTHORITIES
DECLARATION OF RIGEL C. OLIVERI
EXHIBIT A - COMPLAINT IN INTERVENTION (ATTACHED)
EXHIBIT B - OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND SUPPORTING POINTS AND AUTHORITIES (ATTACHED)

TO ALL PARTIES AND THEIR RESPECTIVE COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on January 8, 2001, at 8:30 AM, a hearing will be held before the Honorable Judge David O. Carter of the United States District Court, Central District of California, located at 411 W. Fourth Street, Department 9D in Santa Ana, California, on the Motion by the United States to intervene in the above-captioned matter to oppose the defendant Vincent Stancyk's Motion to Dismiss the Complaint.

This Motion is made pursuant to Federal Rule of Civil Procedure 24(a)(1) and(c) and 28 U.S.C. § 2403(a), on the grounds that the defendant Vincent Stancyk's Motion to Dismiss the Complaint has called into question the constitutionality of an Act of Congress affecting the public interest.

This Motion is made following the conference of counsel pursuant to Local Rule 7.4.1 which took place on the 11th of December, 2000, as described in the concurrently filed Declaration of Rigel C. Oliveri.

This Motion is made and is based on this Notice, the accompanying Memorandum of Points and Authorities, and all matters upon which this court may take judicial notice.

DATED: December __[15]__, 2000

BILL LANN LEE
Assistant Attorney General

JOAN A. MAGAGNA
TIMOTHY J. MORAN
RIGEL C. OLIVERI
Attorneys for Intervenor
United States of America

MEMORANDUM OF POINTS AND AUTHORITIES

  1. INTRODUCTION

In this action, the defendant Vincent Stancyk has moved the court to dismiss the plaintiffs' Complaint. The Motion to Dismiss calls into question the constitutionality of the Fair Housing Act as it applies to the facts of this case. Specifically, the Motion to Dismiss argues that Congress lacks the authority under the Commerce Clause to prohibit discrimination in the local rental housing market. See Def. Motion at 2 ("The federal Fair Housing Act, as applied in the purely intrastate context of this case, may not be constitutionally invoked against defendant."). The Motion to Dismiss also argues that Congress lacks the constitutional authority to prohibit racial harassment in housing pursuant to the Thirteenth Amendment. See Def. Motion at 7 ("The word 'discrimination' . . . does not encompass the concept of harassment.").

These arguments represent a challenge to the constitutionality of the Fair Housing Act. The United States accordingly moves, pursuant to 28 U.S.C. § 2403(a) and Federal Rule of Civil Procedure 24(a) to intervene as a matter of right in order to address the constitutional issues raised by defendant Stancyk's defense to this litigation.

  1. ARGUMENT

The United States possesses an unconditional right to intervene in this action under 28 U.S.C. § 2403(a) and Federal Rule of Civil Procedure 24(a)(1) and (c). The statute provides, in pertinent part:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court . . . shall permit the United States to intervene . . . for argument on the question of constitutionality. . . .

Section 2403(a) by its plain language therefore confers on the United States an unconditional right to intervene when the constitutionality of an act of Congress is challenged. Thatcher v. Tennessee Gas Transmission Co., 180 F.2d 644, 648 n.7 (5th Cir.).

Rule 24(a) of the Federal Rules of Civil Procedure states that:

Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene.

Rule 24(c) addresses the United States' right to intervene "[w]hen the constitutionality of an act of Congress affecting the public interest is drawn in question." The Fair Housing Act, which guarantees civil rights in housing, is clearly an act affecting the public interest. By arguing that the Act cannot properly be applied to unlawful discrimination in the local rental housing market, the defendant Stancyk has called the Fair Housing Act's constitutionality into question. This is precisely the situation for which 28 U.S.C. § 2403(a) and Rule 24(a)(1) and (c) were intended.

CONCLUSION

For the foregoing reasons, the Motion of the United States to intervene for the limited purpose of defending the constitutionality of the Fair Housing Act should be granted.

DATED: December , 2000

BILL LANN LEE
Assistant Attorney General

JOAN A. MAGAGNA
TIMOTHY J. MORAN
RIGEL C. OLIVERI
Attorneys for Intervenor
United States of America

DECLARATION OF RIGEL C. OLIVERI

I, RIGEL C. OLIVERI, do hereby declare and state as follows:

  1. I am a Trial Attorney for the Department of Justice, Civil Rights Division, Housing and Civil Enforcement Section, in Washington, D.C.

  2. In my capacity as a Trial Attorney, I have been assigned primary responsibility for the United States' proposed intervention in the above-captioned matter for the purpose of defending the constitutionality of the Fair Housing Act. I have personal knowledge of the following facts and if called as a witness, would testify thereto under oath.

  3. On November 10, 2000, the defendant Vincent Stancyk's counsel served the Attorney General with a Notice of Motion and Motion to Dismiss, or Alternatively, to Strike Portions of the Complaint; Memorandum of Points and Authorities; and Declaration of Everett L. Skillman.

  4. On Monday, December 11, I called Everett Skillman, counsel of record for defendant Stanyck, on the telephone and requested that he stipulate to our intervention as of right in this matter, pursuant to 28 U.S.C. § 2403. He replied that he would think about it and would let me know.

  5. On Monday, December 11, 1998, I called Christine Baran, counsel of record for the defendants William David Wingo and Karen Wingo Cipriano, and requested that she stipulate to our intervention in this matter. She responded that she would join in the decision made by counsel for defendant Stanyck, as it was his Motion to Dismiss that raised the constitutional issues.

  6. On Monday, December 11, counsel Everett Skillman called me on the telephone and told me that he would not stipulate to our intervention.

  7. On Monday, December 11, I called Christine Baran on the telephone and left a message on her voice mail informing her that Mr. Skillman opposed our request for a stipulation to our intervention.

  8. A copy of the United States' Opposition to defendant Vincent Stancyk's Motion to Dismiss and supporting Memorandum of Points and Authorities is attached hereto as Exhibit 1.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct to the best of my knowledge and belief.

Executed this day of December, 2000 in Washington, D.C.

RIGEL C. OLIVERI, ESQ.

Document Filed: December 15, 2000

General Information Housing and Civil Enforcement Section
 
Leadership
Steven H. Rosenbaum
Chief
Contact
Housing & Civil
Enforcement Section
(202) 514-4713
TTY - 202-305-1882
FAX - (202) 514-1116
To Report an Incident of Housing Discrimination:
1-800-896-7743
Mailing Contact
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530

Email: fairhousing@usdoj.gov

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