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July 11, 2012

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Matthew Reid Krell

I am SO glad you saw the Shelley issues in those things. I see Shelley as a backdoor to prevent a lot of private abuses of fundamental rights. I'm just unsure of the right remedy to invoke; is it a mandamus? Or a prohibition? Do you have to lose once and then invoke the rule at a higher court (that seems unlikely, given the rule of preserving error for review)? Is there some other common-law writ that might lie?

Ralph D. Clifford

Constitutional challenges may not be the only way to go. One of the requisites for a valid real covenant is that it must "touch and concern" the land. I could see a court ruling that some of the restrictions are too far from land use to be enforceable. If the court examines the purpose of the covenant, some of them seem to be for the purpose of implementing Church dogma rather than a bona fide attempt to regulate land use.

Another issue that could be relevant is whether the Church is remaining as a land owner in the neighborhood of the properties transferred subject to the covenants. If not, as the courts do not as easily enforce covenants in gross, another non-constitutional escape valve may exist.

The remedy issue raised by Matthew is problematic. What Shelley said was that the state courts could not enforce a racially restrictive covenant because court action would be state action under the 14th Amendment. The existence of the covenant does not violate the constitution in itself (although it would now run afoul of the Fair Housing Act). I suppose that if the Church threatened to seek enforcement of one of the covenants, a writ of prohibition might be sought to prevent the courts from enforcing the covenant, but I suspect the better approach is to raise the constitutional matter as a defense to the action. Similarly, without the threat of litigation, bringing a declaratory judgment action would raise standing issues.

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