Allegations of improper behavior resulting in hurt feelings. Years of fruitless back-and-forth claims of wrongdoing and absence of wrongdoing filling volumes resulting only in delay and confusion with all hope of prompt justice abandoned. And nothing at all accomplished, in fact and in law. Exhausted, the parties to this battle have fought to a standstill, and we are right back at the beginning. The protagonists have raised the banner of right and justice and are beaten back by a lonely but determined warrior who, though standing alone, has achieved a victory against all odds, at least for the moment. Frank Capra would have smiled.

Sounds juicy, doesn’t it? And this describes not the actions of the parties to a lawsuit, but rather of the Second Circuit Court of Appeals which, over the course now of nearly four years, has been unable to resolve a matter of substantial legal consequence: whether landlords have a duty to intervene to address one tenant’s harassment of another. Until just last month, February 2020, the matter was in the hands of the same three appellate judges who started on their unhappy voyage with oral argument on April 7, 2016, on an appeal from the dismissal by the Eastern District of New York of a lawsuit claiming violations of the Fair Housing Act of 1968 and analogous provisions of New York law. Almost three years later, on March 4, 2019, Judge Lohier, joined by Judge Pooler, issued a 35-page slip opinion. Judge Livingston dissented in 39 pages. The case is Francis v. Kings Park Manor, Inc., No. 15-1823.

But this state of affairs was not to last. A month and a day later, on April 5, 2019, the Court, in a one sentence order, and without any accompanying explanation, withdrew its decision and opinions. The parties and the world were left on tenterhooks for eight months and one day, until December 6, 2019, when the same division of the Court produced a substantially shrunken majority opinion of 24 pages, and a dissent of 35 pages. What had changed and why? The majority is utterly silent on what caused it to alter its reasoning and why the two judges thought it appropriate to do so. It is as if their first opinion had never existed. Poof! Gone like Froggy the Gremlin in the old Andy’s Gang. Forgotten by the judges of the old and new majority opinions, but not by the dissenter who describes in relevant detail the changes made. But more on that—and the hurt feelings alluded to in the first sentence of this piece—anon.

And the story is not yet over. On February 3, 2020, the Court issued an order setting the appeal down for a rehearing en banc, a majority of the active judges of the Court so voting. Certainly not yet Jarndyce v. Jarndyce—after all, the facts upon which the allegations of the Complaint are grounded commenced only eight years ago—but there can be no question that Charles Dickens is smiling wherever he is: Christmas past is Christmas present.

But what is this case all about and why is it consequential? The majority thought it was doing something noble. After all, you don’t open both of your majority opinions with a reference to the assassination of Dr. Martin Luther King Jr., coupled with the passage of the Fair Housing Act, unless you are about to claim an exalted high ground. The allegations in the Complaint are that one tenant racially harassed another, and did so on more than one occasion: once in February 2012, three times in March that year, twice in May, and once each in August and September. On March 11, 2012, Plaintiff called the police, and the Hate Crimes Unit visited the KPM apartment complex, interviewed witnesses, and told the perpetrator to stop threatening Plaintiff with racial epithets. Plaintiff notified KPM by letter in May 2012 of the alleged racist conduct and provided contact information for the police who were investigating the perpetrator. The perpetrator’s escalating threats resulted in his arrest for aggravated harassment, which Plaintiff told KPM about in a second letter. A third letter to KPM followed in September. In none of the letters did Plaintiff request KPM take any action. The perpetrator’s lease expired in January 2013 and, in April 2013, he pled guilty to harassment. That same month, Plaintiff obtained an order of protection against the perpetrator. Fourteen months later, Plaintiff sued KPM for violating the FHA and its New York equivalent.

The majority admits that “the text of the FHA nowhere explicitly endorses landlord liability arising from . . . tenant-on-tenant harassment.” It goes on to spend most of its legal analysis not on the subject at hand (to wit, whether the FHA reaches an alleged failure of a landlord to act, somehow, to mitigate or punish the racist behavior of others), but on discussing whether the FHA reaches post-acquisition conduct at all. The majority cites to cases where courts have held that the landlord has acted in a racist manner, such as by threatening to evict a tenant “upon learning that he is married to a black woman . . ..” Getting from there to here occupies a vanishingly small part of the majority’s treatment of the issue actually presented, with the Court merely stating that “we have never required every last detail of a legislative scheme to be spelled out in a statute itself—especially a civil rights statute.” Admitting, at least in its second opinion, that intentional discrimination must be shown, the majority concludes that it can be found in the complaint’s allegations that the landlord addressed “non-race-related violations of their leases or of the law.”

The dissent takes on the majority opinion on all fronts, and the second dissent does what the majority does not do by dealing with the reality of what the majority has done over the course of more than three years and the filing of two majority opinions. The dissenting judge reaches the conclusion that the FHA sections involved “cannot bear the interpretation imposed on them today, which has no support in the FHA’s text, our precedent, or the background tort principles that informed Congress at the time the FHA was enacted.” And her reasoning is sound and comprehensive. She includes a fact worth mentioning that the majority chose not to: that Plaintiff renewed his lease without comment during the period of harassment. And further, that KPM declined to renew the perpetrator’s lease in November, and no harassment is alleged to have taken place between non-renewal and the perpetrator’s departure. Perhaps these seemingly important facts were not mentioned by the majority because they did not fit neatly into its preferred narrative.

The dissenting judge points out that the action that purportedly satisfies pleading intentional discrimination by the landlord is a failure to intervene in the ongoing police investigation following Plaintiff’s notification that the investigation was underway. And, the dissent asks: “Based on the allegations in this complaint, what would the majority have had the [landlord] do, in response to [Plaintiff’s] belated notification as to [the perpetrator’s] conduct—particularly given that [Plaintiff] himself asked nothing of them?” Interviewed tenants, contacted the perpetrator, commenced eviction proceedings—all in potential interference with an ongoing police investigation? If the majority cannot even identify what the landlord might have done differently, the dissenter argues, how can the majority support a cause of action that would hold the landlord liable for what it did not do? The dissenting judge also criticizes the logic of cobbling out of the existence of other landlord actions for non-race-related violations a finding of intentionality: Did these interventions involve members of a protected class, the heating system, or a shower curtain?

Now we come to the hurt feelings. It would seem to be common courtesy to the reader of these opinions for the majority to provide some context for the unusual, to say the least, dropping of one opinion only to issue another that was considerably shorter. Why the change? What was the change? What process of analysis generated the new opinion? Inquiring minds want to know, and a court making new law would reasonably want the public to understand the what and why. We should not be required to apply a sort-of close textual AutoCorrect to the two majority opinions—and then add to that speculation as to what promoted this change of paths on the road to this particular Damascus.

Only the dissent describes the changes in the reasoning of the two opinions. The first time around, the majority stated that the FHA was violated even though the landlord had no discriminatory intent. The second time around, the majority reversed course and held that discriminatory intent was required. It cobbled together that intent from a complaint that never alleged it, finding it in the landlord’s alleged failure to intervene in an ongoing police investigation even as it took action in unidentified other tenant lease violations (the supposed shower curtain example hypothesized by the dissent). Perhaps this is embarrassing to the majority, but if it is, the embarrassment is compounded by the majority’s utter silence on the reasons for its two opinions.

Instead of explaining the circumstances of its change of mind, if not heart, the majority attacks the dissent for doing just that. In a truly remarkable footnote, the majority states: “Relying on a withdrawn opinion is, in our view, an error that does not serve our Court as an institution.” The footnote continues to make a point as obscure as it is inscrutable: “We note, too, that our colleague separately soars with a ‘sub silentio’ opinion that (apparently) again is woven from the withdrawn opinion but bears little resemblance to the actual, narrow holding of the majority opinion filed today.” If anyone is airing dirty linen, it is not the dissent, which is professional throughout.

Moreover, even as the dissent disagreed with the claimed “narrowness” of the holding, so too must have at least a majority of the majority’s colleagues in considering the issue of such importance that they granted a rare en banc re-argument. And it is. Judge Posner, as the dissent states, warned against interpreting the FHA’s general language to support a cause of action against landlords based on harassment by neighbors. Nothing in the statute, Judge Posner wrote, justifies allowing such disputes to become “a routine basis for federal litigation.”

This is an important case, not only because the majority would create a cause of action out of nothing but a desire to “do good,” but because the consequences are anything but good. The dissent puts it best: Instead of being a “step forward to ‘root[ing] out discrimination in housing,’ . . . [the majority’s decision], like the one issued and then withdrawn, is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us.”

She is right. Follow this case carefully through its next chapter to see whether landlords face being dragooned as Deputy Sheriffs in the posse rooting out for harassment by and among their tenants.