The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_23/94_23.zd

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SUPREME COURT OF THE UNITED STATES
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No. 94-23
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CITY OF EDMONDS, PETITIONER v. OXFORD
HOUSE, INC., et al.
on writ of certiorari to the united states court
of appeals for the ninth circuit
[May 15, 1995]

  Justice Thomas, with whom Justice Scalia and
Justice Kennedy join, dissenting.
  Congress has exempted from the requirements of the
Fair Housing Act (FHA) -any reasonable local, State, or
Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling.-  42 U. S. C.
3607(b)(1) (emphasis added).  In today's decision, the
Court concludes that the challenged provisions of peti-
tioner's zoning code do not qualify for this exemption,
even though they establish a specific number-five-as
the maximum number of unrelated persons permitted to
occupy a dwelling in the single-family neighborhoods of
Edmonds, Washington.  Because the Court's conclusion
fails to give effect to the plain language of the statute,
I respectfully dissent.

                            I
  Petitioner's zoning code reserves certain neighborhoods
primarily for -[s]ingle-family dwelling units.-  Edmonds
Community Development Code (ECDC) 16.20.010(A)(1)
(1991), App. 225.  To live together in such a dwelling, a
group must constitute a -family,- which may be either
a traditional kind of family, comprising -two or more
persons related by genetics, adoption, or marriage,- or a
nontraditional one, comprising -a group of five or fewer
persons who are not [so] related.-  21.30.010, App. 250.
As respondent United States conceded at oral argument,
the effect of these provisions is to establish a rule that
-no house in [a single-family] area of the city shall have
more than five occupants unless it is a [traditional kind
of] family.-  Tr. of Oral Arg. 46.  In other words, peti-
tioner's zoning code establishes for certain dwellings -a
five-occupant limit, [with] an exception for [traditional]
families.-  Ibid.
  To my mind, the rule that -no house . . . shall have
more than five occupants- (a -five-occupant limit-) read-
ily qualifies as a -restrictio[n] regarding the maximum
number of occupants permitted to occupy a dwelling.-
In plain fashion, it -restrict[s]--to five--the maximum
number of occupants permitted to occupy a dwelling.-
To be sure, as the majority observes, the restriction im-
posed by petitioner's zoning code is not an absolute one,
because it does not apply to related persons.  See ante,
at 10.  But 3607(b)(1) does not set forth a narrow ex-
emption only for -absolute- or -unqualified- restrictions
regarding the maximum number of occupants.  Instead,
it sweeps broadly to exempt any restrictions regarding
such maximum number.  It is difficult to imagine what
broader terms Congress could have used to signify the
categories or kinds of relevant governmental restrictions
that are exempt from the FHA.
  Consider a real estate agent who is assigned responsi-
bility for the city of Edmonds.  Desiring to learn all he
can about his new territory, the agent inquires: -Does
the city have any restrictions regarding the maximum
number of occupants permitted to occupy a dwelling?-
The accurate answer must surely be in the affirmative-
yes, the maximum number of unrelated persons permit-
ted to occupy a dwelling in a single-family neighborhood
is five.  Or consider a different example.  Assume that
the Federal Republic of Germany imposes no restrictions
on the speed of -cars- that drive on the Autobahn but
does cap the speed of -trucks- (which are defined as all
other vehicles).  If a conscientious visitor to Germany
asks whether there are -any restrictions regarding the
maximum speed of motor vehicles permitted to drive on
the Autobahn,- the accurate answer again is surely the
affirmative one-yes, there is a restriction regarding the
maximum speed of trucks on the Autobahn.
  The majority does not ask whether petitioner's zoning
code imposes any restrictions regarding the maximum
number of occupants permitted to occupy a dwelling.
Instead, observing that pursuant to ECDC 21.30.010,
-any number of people can live in a house,- so long as
they are -related `by genetics, adoption, or marriage,'-
the majority concludes that 21.30.010 does not qualify
for 3607(b)(1)'s exemption because it -surely does not
answer the question: `What is the maximum number of
occupants permitted to occupy a house?'-  Ante, at 10.
The majority's question, however, does not accord with
the text of the statute.  To take advantage of the ex-
emption, a local, state, or federal law need not impose
a restriction establishing an absolute maximum number
of occupants; under 3607(b)(1), it is necessary only that
such law impose a restriction -regarding- the maximum
number of occupants.  Surely, a restriction can -regar[d]-
-or -concern,- -relate to,- or -bear on--the maximum
number of occupants without establishing an absolute
maximum number in all cases.
  I would apply 3607(b)(1) as it is written.  Because
petitioner's zoning code imposes a qualified -restrictio[n]
regarding the maximum number of occupants permitted
to occupy a dwelling,- and because the statute exempts
from the FHA -any- such restrictions, I would reverse
the Ninth Circuit's holding that the exemption does not
apply in this case.

                           II
  The majority's failure to ask the right question about
petitioner's zoning code results from a more fundamental
error in focusing on -maximum occupancy restrictions-
and -family composition rules.-  See generally ante, at
4-8.  These two terms-and the two categories of zoning
rules they describe-are simply irrelevant to this case.

                            A
  As an initial matter, I do not agree with the majority's
interpretive premise that -this case [is] an instance in
which an exception to `a general statement of policy' is
sensibly read `narrowly in order to preserve the primary
operation of the [policy].'-  Ante, at 5 (quoting Commis-
sioner v. Clark, 489 U. S. 726, 739 (1989)).  Why this
case?  Surely, it is not because the FHA has a -policy-;
every statute has that.  Nor could the reason be that a
narrow reading of 3607(b)(1) is necessary to preserve
the primary operation of the FHA's stated policy -to pro-
vide . . . for fair housing throughout the United States.-
42 U. S. C. 3601.  Congress, the body responsible for
deciding how specifically to achieve the objective of fair
housing, obviously believed that 3607(b)(1)'s exemption
for -any . . . restrictions regarding the maximum num-
ber of occupants permitted to occupy a dwelling- is con-
sistent with the FHA's general statement of policy.  We
do Congress no service-indeed, we negate the -primary
operation- of 3607(b)(1)-by giving that congressional
enactment an artificially narrow reading.  See Rodriguez
v. United States, 480 U. S. 522, 526 (1987) (per curiam)
(-[I]t frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the stat-
ute's primary objective must be law-); Board of Gover-
nors, FRS v. Dimension Financial Corp., 474 U. S. 361,
374 (1986) (-Invocation of the `plain purpose' of legis-
lation at the expense of the terms of the statute itself
. . . , in the end, prevents the effectuation of congres-
sional intent-).
  In any event, as applied to the present case, the maj-
ority's interpretive premise clashes with our decision in
Gregory v. Ashcroft, 501 U. S. 452, 456-470 (1991), in
which we held that state judges are not protected by the
Age Discrimination in Employment Act of 1967 (ADEA),
81 Stat. 602, as amended, 29 U. S. C. 621-634 (1988
ed. and Supp. V).  Though the ADEA generally protects
the employees of States and their political subdivisions,
see 630(b)(2), it exempts from protection state and local
elected officials and -appointee[s] on the policymaking
level,- 630(f).  In concluding that state judges fell with-
in this exemption, we did not construe it -narrowly- in
order to preserve the -primary operation- of the ADEA.
Instead, we specifically said that we were -not looking
for a plain statement that judges are excluded- from the
Act's coverage.  Gregory, supra, at 467.  Moreover, we
said this despite precedent recognizing that the ADEA
-`broadly prohibits'- age discrimination in the workplace.
Trans World Airlines, Inc. v. Thurston, 469 U. S. 111,
120 (1985) (quoting Lorillard v. Pons, 434 U. S. 575, 577
(1978)).  Cf. ante, at 5 (noting -precedent recognizing the
FHA's `broad and inclusive' compass- (quoting Trafficante
v. Metropolitan Life Ins. Co., 409 U. S. 205, 209 (1972))).
  Behind our refusal in Gregory to give a narrow con-
struction to the ADEA's exemption for -appointee[s] on
the policymaking level- was our holding that the power
of Congress to -legislate in areas traditionally regulated
by the States- is -an extraordinary power in a federalist
system,- and -a power that we must assume Congress
does not exercise lightly.-  501 U. S., at 460.  Thus, we
require that -`Congress should make its intention -clear
and manifest- if it intends to pre-empt the historic pow-
ers of the States.'-  Id., at 461 (quoting Will v. Michi-
gan Dept. of State Police, 491 U. S. 58, 65 (1989)).  It is
obvious that land use-the subject of petitioner's zoning
code-is an area traditionally regulated by the States
rather than by Congress, and that land use regulation
is one of the historic powers of the States.  As we have
stated, -zoning laws and their provisions . . . are pecu-
liarly within the province of state and local legislative
authorities.-  Warth v. Seldin, 422 U. S. 490, 508, n. 18
(1975).  See also Hess v. Port Authority Trans-Hudson
Corporation, 513 U. S. ___, ___ (1994) (slip op., at 13)
(-regulation of land use [is] a function traditionally per-
formed by local governments-); FERC v. Mississippi, 456
U. S. 742, 768, n. 30 (1982) (-regulation of land use is
perhaps the quintessential state activity-); Village of
Belle Terre v. Boraas, 416 U. S. 1, 13 (1974) (Marshall,
J., dissenting) (-I am in full agreement with the major-
ity that zoning . . . may indeed be the most essential
function performed by local government-).  Accordingly,
even if it might be sensible in other contexts to construe
exemptions narrowly, that principle has no application
in this case.

                            B
  I turn now to the substance of the majority's analysis,
the focus of which is -maximum occupancy restrictions-
and -family composition rules.-  The first of these two
terms has the sole function of serving as a label for a
category of zoning rules simply invented by the majority:
rules that -cap the number of occupants per dwelling,
typically in relation to available floor space or the num-
ber and type of rooms,- that -ordinarily apply uniformly
to all residents of all dwelling units,- and that have the
-purpose . . . to protect health and safety by preventing
dwelling overcrowding.-  Ante, at 6-7.  The majority's
term does bear a familial resemblance to the statutory
term -restrictions regarding the maximum number of oc-
cupants permitted to occupy a dwelling,- but it should
be readily apparent that the category of zoning rules the
majority labels -maximum occupancy restrictions- does
not exhaust the category of restrictions exempted from
the FHA by 3607(b)(1).  The plain words of the statute
do not refer to -available floor space or the number and
type of rooms-; they embrace no requirement that the
exempted restrictions -apply uniformly to all residents
of all dwelling units-; and they give no indication that
such restrictions must have the -purpose . . . to protect
health and safety by preventing dwelling overcrowding.-
Ibid.
  Of course, the majority does not contend that the lan-
guage of 3607(b)(1) precisely describes the category of
zoning rules it has labeled -maximum occupancy restric-
tions.-  Rather, the majority makes the far more narrow
claim that the statutory language -surely encompasses-
that category.  Ante, at 8.  I readily concede this point.
But the obvious conclusion that 3607(b)(1) encompasses
-maximum occupancy restrictions- tells us nothing about
whether the statute also encompasses ECDC 21.30.010,
the zoning rule at issue here.  In other words, although
the majority's discussion will no doubt provide guidance
in future cases, it is completely irrelevant to the ques-
tion presented in this case.
  The majority fares no better in its treatment of -fam-
ily composition rules,- a term employed by the majority
to describe yet another invented category of zoning re-
strictions.  Although today's decision seems to hinge on
the majority's judgment that ECDC 21.30.010 is a -clas-
sic exampl[e] of a . . . family composition rule,- ante, at
9, the majority says virtually nothing about this crucial
category.  Thus, it briefly alludes to the derivation of
-family composition rules- and provides a single example
of them.  Apart from these two references, however, the
majority's analysis consists solely of announcing its con-
clusion that -the formulation [of 3607(b)(1)] does not fit
family composition rules.-  Ante, at 8.  This is not rea-
soning; it is ipse dixit.  Indeed, it is not until after this
conclusion has been announced that the majority (in the
course of summing up) even defines -family composition
rules- at all.  See ibid. (referring to -rules designed to
preserve the family character of a neighborhood, fasten-
ing on the composition of households rather than on the
total number of occupants living quarters can contain-).
  Although the majority does not say so explicitly, one
might infer from its belated definition of -family compo-
sition rules- that 3607(b)(1) does not encompass zoning
rules that have one particular purpose (-to preserve the
family character of a neighborhood-) or those that refer
to the qualitative as well as the quantitative character
of a dwelling (by -fastening on the composition of house-
holds rather than on the total number of occupants liv-
ing quarters can contain-).  Ibid.  Yet terms like -family
character,- -composition of households,- -total [that is,
absolute] number of occupants,- and -living quarters- are
noticeably absent from the text of the statute.  Section
3607(b)(1) limits neither the permissible purposes of a
qualifying zoning restriction nor the ways in which such
a restriction may accomplish its purposes.  Rather, the
exemption encompasses -any- zoning restriction-what-
ever its purpose and by whatever means it accomplishes
that purpose-so long as the restriction -regard[s]- the
maximum number of occupants.  See generally supra, at
2-5.  As I have explained, petitioner's zoning code does
precisely that.
  In sum, it does not matter that ECDC 21.030.010 de-
scribes -[f]amily living, not living space per occupant,-
ante, at 10, because it is immaterial under 3607(b)(1)
whether 21.030.010 constitutes a -family composition
rule- but not a -maximum occupancy restriction.-  The
sole relevant question is whether petitioner's zoning code
imposes -any . . . restrictions regarding the maximum
number of occupants permitted to occupy a dwelling.-
Because I believe it does, I respectfully dissent.