Mason v. Adams County Recorder et al

Filing 59

MEMORANDUM OPINION AND ORDER signed by Judge William O. Bertelsman on 5/10/2017.IT IS ORDERED that Defendants Motions to Dismiss (Docs. 19 , 25 , 30 , 31 , 32 , 33 , 34 , and 35 ) are hereby GRANTED. (eh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AT CINCINNATI
CIVIL ACTION NO. 1:2016-CV-755 (WOB)
DARRYL O. MASON
VS.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

ADAMS COUNTY RECORDER, ET AL.

DEFENDANTS

This is a civil rights case brought under the 1968 Fair
Housing Act, 42 U.S.C. § 1983, 42 U.S.C. § 1985. Following briefing
on Defendants’ Motions to Dismiss under FED. R. CIV. P. 12(b)(1),
the Court held a hearing on the matter and asked Plaintiff to file
a proposed injunction to clarify the relief he sought.

Having

been duly advised, the Court now issues this Memorandum Opinion
and Order.
I. Facts
This is a case about old land deeds and plat maps that contain
racially

restrictive

covenants.

In

2012,

someone—perhaps

Plaintiff—requested deeds and plat maps covering 29 properties
across mostly Southwest Ohio. 1
Ohio county.

1

Each property was in a different

All 29 County Recorders furnished the documents,

There are 88 counties in Ohio, and Plaintiff has sued all 88 County
Recorders. Yet, Plaintiff only cites racially restrictive covenants
in 29 of the 88 counties. Plaintiff argues that “[a]ll other County
Recorders in the State of Ohio are required parties under FRCP 19
because without them, this Court cannot accord complete relief among
the parties and their absence from the case creates the potential for
an incomplete or inconsistent resolution of Plaintiff’s claims.” (Pl.
Compl., PageID# 34-35).

1

each of which contained a reference to a racial restriction.
There is no evidence that any of the racial restrictions had
been enforced since May 3, 1948, when the Supreme Court prohibited
a court from enforcing such restrictions in Shelley v. Kraemer.
334 U.S. 1 (1948).

The restrictions here come from documents

recorded between 1922 (Pike County) and 1957 (Lawrence County)—
all predating the 1968 Fair Housing Act.
Plaintiff, Darryl O. Mason, alleges the “publishing of the
covenants intimidates and discourages [him], and other similarly
situated persons, from choosing to live in areas containing such
restrictive covenants.”

(Pl. Resp., PageID# 297).

There is no

evidence Plaintiff has ever visited, attempted to purchase, or
attempted to lease any of the properties.

Nonetheless, Plaintiff

alleges he is entitled to have the County Recorders redact the
racially restrictive covenants from the deeds and plat maps, and
that he is eligible for punitive damages because the Recorders
have housed and provided copies of the 29 documents.
II. Analysis
A. Though third-party standing may be available in a case
involving racially restrictive covenants, that does not
excuse Plaintiff from showing injury, causation, and
redressability.
The Supreme Court has long held that the Constitution requires
a Plaintiff to show he was injured, that the Defendant was the
cause of the injury, and that the Defendant can redress the injury.
Sierra

Club

v.

Morton,

405

U.S.
2

727,

741

(1972).

This

Constitutional requirement is essential to discourage suits by
those with merely an ideological stake in the litigation. See
United States v. Richardson, 418 U.S. 166, 192 (1974)(Powell, J.,
concurring).

The Supreme Court thus has found that a “plaintiff

generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights and interests
of third parties.”

Warth v. Seldin, 422 U.S. 490, 499 (1975).

There are exceptions, however. The Supreme Court has created
prudential standing requirements, which are not constitutionally
required but govern standing nonetheless. See Henry P. Monaghan,
Third Party Standing, 84 COLUM. L. REV. 277, 278 (1984). The Supreme
Court has used this authority to loosen standing requirements in
a case involving racially restrictive covenants.

See Barrows v.

Jackson, 346 U.S. 249, 257 (1953).
In Barrows—which arose in the wake of Shelley v. Kraemer, 334
U.S. 1 (1948)—white homeowners sought damages in state court when
their neighbor rented to African-Americans in contravention of
their agreed racially restrictive covenant.

Barrows, 346 U.S. at

251. The defendant moved to dismiss on the grounds that plaintiffs
requested

relief

would

constitute

state

action

denying

non-

Caucasian citizens equal protection of the laws in violation of
the Fourteenth Amendment. The state trial and appellate courts
agreed. Id. at 252. The Court noted that to “compel respondent to
respond in damages would be for the State to punish her for her
3

failure to perform her covenant to continue to discriminate against
non-Caucasians in the use of her property.” Id. at 254.
The Court went further, however, and held that the case
presented a “unique situation” warranting third-party standing.
Id. at 257; see also Ronald D. Rotunda & John E. Nowak, Applying
Third Party Standing Rules, 1 TREATISE
(March

2016).

The

constitutional

Court

defense,

thus

not

ON

found

based

CONST. L. § 2.13(f)(iii)(3)
standing

solely

on

to
the

assert

the

defendant’s

potential liability for damages, but also on the injury to the
African-American lessees, who were not parties to the case.
Thus, in the rare case that implicates third-party standing,
a Plaintiff must meet two hurdles instead of one.

See Gladstone

Realtors v. Village of Bellwood, 441 U.S. 91, 99–100 (1979).
First, the Plaintiff must show he was personally injured by the
Defendant and that the Court can redress the harm.

See Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167,

180-81

(2000);

see

also

Erwin

Chemerinsky,

Federal

Jurisdiction § 2.3.4 at 84 (6th ed. 2012)(“It must be stressed
that the person seeking to advocate the rights of third parties
must meet the constitutional standing requirements of injury,
causation, and redressability in addition to fitting within one of
the [prudential] exceptions.”).
is

in

addition

requirement

of

to

—

not

showing

a

that

This constitutional requirement

substitute
“it
4

would

for
be

—

the

prudential

difficult

if

not

impossible for the persons whose rights are asserted to present
their grievance before any court.” Barrows, 346 U.S. at 257.
Here,
standing.

Plaintiff

fails

both

requirements

for

third-party

He does not meet the Constitutional requirement of

showing a concrete and particularized injury caused by Defendants
that is redressable by this Court. This opinion will address those
points below.

But, to the extent Plaintiff is attempting to

present the grievances of others who are affected by the racially
restrictive covenants on file in various Ohio County Recorder
offices, there is no showing that it would be “difficult if not
impossible” for those individuals to bring a suit on their own.
Barrows, 346 U.S. at 257.
B. Taxpayer standing is inapplicable to this case.
Plaintiff has also alluded to taxpayer standing, but that
doctrine is also inapplicable. In general, federal courts do not
recognize standing merely based on a plaintiff’s status as a
taxpayer or his interest in seeing that Treasury funds are spent
in accordance with the Constitution.
262

U.S.

447,

485–86

(1923);

See Massachusetts v. Mellon,
Erwin

Chemerinsky,

Federal

Jurisdiction § 2.3.4 at 59 (6th ed. 2012). Instead, courts require
a “concrete and particularized” injury to the individual, and not
something held in common with all of the public. Spokeo, Inc. v.
Robins, ___ U.S. ___, 136 S. Ct. 1540, 1548 (2016).
There

is

an

exception,

though,
5

for

Establishment

Clause

cases. See Rachel Bayefsky, Psychological Harm and Constitutional
Standing, 81 BROOK. L. REV. 1555, 1572-73 (2016).

The exception

dates back to Flast v. Cohen. 392 U.S. 83 (1968).

In Flast, a

group of taxpayers sued a school board in New York to enjoin the
board from purchasing textbooks for a parochial school.

The

Supreme Court found that the taxpayers had standing because the
plaintiff’s “tax money [was] being extracted and spent in violation
of specific constitutional protections.”

Id. at 106.

In the wake of Flast, federal courts were flooded with cases
involving individuals or groups challenging religious displays or
demonstrations on public property.

See, e.g., McCreary County,

Ky. v. Am. Civ. Liberties Union of Ky., 545 U.S. 844 (2005); Van
Orden v. Perry, 545 U.S. 677 (2005); Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc., 454
U.S. 464 (1982); Am. Civ. Liberties Union of Kentucky v. Wilkinson,
701 F. Supp. 1296 (E.D. Ky. 1988), aff’d, 895 F.2d 1098 (6th Cir.
1990).

Each of those cases found standing on the Flast exception

permitting taxpayer standing in Establishment Clause cases.

See,

e.g., Wilkinson, 701 F. Supp. at 1302–03.
Here, the Establishment Clause line of cases is inapplicable.
See Moore v. Bryant, ___ F.3d ___, 16-60616, 2017 WL 1207595, at
*2–3 (5th Cir. Mar. 31, 2017)(holding that Establishment Clause
case law is “inapplicable” to an Equal Protection Clause standing
analysis); see also Bayefsky, 81 BROOK. L. REV. at 1572. Plaintiff’s
6

claims do not implicate the Establishment Clause, and the Court
cannot find standing on that basis.
C. Plaintiff does not meet any of the three requirements of
Constitutional standing.
1. Plaintiff’s
injury
is
not
concrete
and
particularized, so it fails the first requirement of
Constitutional standing.
The first prong of the standing inquiry asks whether Plaintiff
can show “injury in fact that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical.”
Friends of the Earth, 528 U.S. at 180–81 (internal quotations
omitted).

Plaintiff argues the Ohio County Recorders have injured

him because the “publishing of the covenants intimidates and
discourages [him], and other similarly situated persons, from
choosing to live in areas containing such restrictive covenants.”
(Pl. Resp., PageID# 297).

He believes the documents “creat[e] a

feeling that [non-Caucasians] are unwelcome or do not belong in
certain neighborhoods.”
Notably,

Plaintiff

(Compl., ¶ 194).
does

not

allege

that

he

personally

attempted to purchase, rent, or view any of the properties covered
by the racially restrictive covenants. 2

2

Plaintiff was thus not

In lieu of explaining how the presence of the racially restrictive
covenants on historical documents constitutes an injury in fact to him,
Plaintiff argues he is injured because the County Recorders may have
violated Title VIII of the 1968 Fair Housing Act.
This is not
sufficient, though, because “Congress cannot erase Article III’s
standing requirements by statutorily granting the right to sue to a
plaintiff who would not otherwise have standing.” Raines v. Byrd, 521
U.S. 811, 820 at n.3 (1997). It is true that the Sixth Circuit has
held that when a statute confers a new legal right on a person, that

7

“himself among the injured.”

Lujan v. Defs. of Wildlife, 504 U.S.

555, 563 (1992)(quoting Sierra Club, 405 U.S. at 734).
It is true that this Court must broadly construe standing in
Fair Housing Act cases.

See Wilson v. Glenwood Intermountain

Properties, Inc., 98 F.3d 590, 593 (10th Cir. 1996)(citing Havens
Realty Corp. v. Coleman, 455 U.S. 363, 370 (1982)).

As such, the

Court finds Plaintiff’s cognizance of restrictive deeds and plat
maps is somewhat similar to plaintiffs who view advertisements
with racially restrictive undertones. For example, the Second
Circuit

held

that

simply

viewing

a

newspaper

advertisement

implying a racial preference is sufficient to constitute an injury.
Ragin v. Harry Macklowe Real Est. Co., 6 F.3d 898, 903–05 (2d Cir.
1993).
But

there

advertisement
against

are

that

critical
implies

non-Caucasians

restriction

on

a

and

property

purchase, rent, or pursue.

differences

a

present

intent

discovering
the

between

Plaintiff

a

to

seeing

an

discriminate

now-unenforceable

does

not

intend

to

Here, there is no threat that the

racial restrictions at issue would ever be enforced because Courts

person has Constitutional standing if the facts show a concrete,
particularized, and personalized injury resulting from the statutory
violation. Imhoff Inv., L.L.C. v. Alfoccino, Inc., 792 F.3d 627, 633
(6th Cir. 2015). Yet, the Supreme Court has found that an allegation
of a Fair Housing Act violation will not constitute an injury in fact
if the Plaintiff did not personally suffer the discrimination. Havens
Realty Corp. v. Coleman, 455 U.S. 363, 374–75 (1982). So Plaintiff
must still show that he personally suffered a harm, even assuming the
Recorders violated the Fair Housing Act.

8

across America have been prohibited from enforcing such covenants
for 69 years, Congress prohibited the enactment and enforcement of
such covenants 49 years ago, and the Ohio legislature prohibited
the same 48 years ago. Shelley, 334 U.S. at 19; 42 U.S.C. §§ 3601–
3631; OHIO REV. CODE ANN. § 4112.02(H)(9).
Without the threat of present enforcement of these covenants,
Plaintiff is unable to show an “actual or imminent” injury to
himself today.

Lujan, 504 U.S. at 560.

Instead, he relies on his

discouragement upon viewing the 29 historical deeds and plat maps.
But “[i]t is the reality of the threat of repeated injury that is
relevant to the standing inquiry, not the plaintiff’s subjective
apprehensions.”

City of Los Angeles v. Lyons, 461 U.S. 95, 107 at

n. 8 (1983).
Plaintiff’s subjective discouragement is precisely the type
of “conjectural or hypothetical” injury the Supreme Court has said
is insufficient to constitute an injury in fact.

Friends of the

Earth, Inc., 528 U.S. at 180; see also Moore, 2017 WL 1207595, at
*2 (denying standing for African-American attorney challenging use
of Confederate flag within the Mississippi state flag because “to
plead stigmatic-injury standing, Plaintiff must plead that he was
personally subjected to discriminatory treatment”).
The lack of injury is decisive and constrains this Court from
adjudicating the merits of the case.
528 U.S. at 180-81.

See Friends of the Earth,

Nonetheless, this opinion will address the
9

other two elements of constitutional standing.
2. Plaintiff fails the second prong of Constitutional
standing because any injury he suffered was caused by
the drafters of the deeds and plat maps, rather than
the County Recorders.
Under

the

second

prong

of

the

Constitutional

standing

inquiry, this Court must assess whether there is an injury “that
fairly can be traced to the challenged action of the defendant,
and not injury that results from the independent action of some
third party not before the court.”
Leg.

Duty,

Inc.

v.

Deters,

92

Children’s Healthcare is a
F.3d

1412,

1423

(6th

Cir.

1996)(citing Simon v. E. Kentucky Welfare Rights Org., 426 U.S.
26, 41–42 (1976)).
As noted, Plaintiff’s alleged injury is his discouragement
upon seeing the restrictive covenants in the 29 documents he cites.
There are three problems with Plaintiff basing standing on this
injury.
First, Plaintiff has sued 89 officials, only 30 of whom have
any connection to the documents at issue.

The unrelated 59

Defendants could not have caused Plaintiff’s discouragement upon
seeing documents in another county.
Second,

to

the

extent

Plaintiff’s

discouragement

is

an

injury, that discouragement was not caused by the County Recorders,
but by the drafters of the documents—the real estate agent or title
company.

See OHIO REV. CODE ANN. § 317.082(A).

The County Recorder

did not create these documents or have any hand in incorporating
10

the restrictive clauses at issue.
Third, if the alleged injury is the County Recorder furnishing
these documents, the cause of such injury is the Ohio legislature,
which passed the Code provisions requiring the Recorder to provide
the documents.
Thus,

See OHIO REV. CODE ANN. § 317.27.

the

County

Recorders

are

not

the

true

cause

of

Plaintiff’s injury, to whatever extent Plaintiff is injured. As
such, there can be no standing.
3.

Under

Plaintiff cannot show the third element of
Constitutional standing because a County Recorder
cannot redress any perceived harm by redacting
historical documents absent permission from the Ohio
legislature.
the

third

prong

of

the

Constitutional

standing

analysis, Plaintiff must show that a favorable judicial ruling
“will remove the harm” he suffers.

Warth, 422 U.S. at 505.

Defendants assert it is impossible for this Court to provide
relief

that

would

“alleviate

any

subjective

feeling”

of

discouragement Plaintiff experiences by reading the restrictive
covenants. (CORSA D. Mot. to Dismiss, p. 6).

However, redacting

the language from the documents would at least remove reminders of
the historical discrimination.

Thus, this Court would need to

determine whether it could lawfully order the County Recorders to
redact the documents.

This requires an examination of the duties

of an Ohio County Recorder.
An Ohio County Recorder is required to record all deeds and
11

plat

maps.

OHIO REV. CODE ANN.

§§

317.08(A)(1);

317.08(A)(24);

317.13(A). The mortgage company, bank, title agency, or real estate
agent is responsible for the information on deeds and maps.

See

OHIO REV. CODE ANN. § 317.082(A). If those individuals attempt to
file a deed with personal information such as a social security
number, the County Recorder is allowed to “immediately redact” the
personal information.

OHIO REV. CODE ANN. § 317.082(B). 3

That is

the only time the Ohio Revised Code allows a County Recorder to
alter a document it receives for filing.

The County Recorder may

also refuse to file documents it believes to be “materially false
or fraudulent,” though the Recorder has no affirmative duty to
inspect the documents before filing. OHIO REV. CODE ANN. § 317.13(B).
Plaintiff would have this Court order the County Recorder to
retroactively alter documents that have been on file for 60 years
or more. 4

3

4

The authorities do not support Plaintiff’s position.

Even if both the deed filer and the County Recorder fail to notice that
there is personal identification information on a deed before it is
filed and available to the public, the person whose information is
released cannot sue the County Recorder unless he can show the Recorder
acted “with malicious purpose, in bad faith, or in a wanton or reckless
manner.” OHIO REV. CODE ANN. § 317.082(B).
In addressing that issue, this Court is not drawing on a blank canvas.
The question of whether a county recorder has discretion to reject and
alter documents before and after filing has long vexed American courts.
See Peery’s Lessee v. Burton, 1 Del. Cas. 28, 28 (1794)(finding a
recorder was a ministerial officer without discretion).
Courts and
officials have addressed the issue in Michigan, Washington, Illinois,
and Washington, D.C. Jennings v. Dockham, 58 N.W. 66, 68 (Mich.
1894)(holding that a Recorder cannot correct a record once it has been
recorded); Dirks v. Collin, 79 P. 1112 (Wash. 1905)(limiting power of
County Recorder); City of Peoria v. C. Nat. Bank, 79 N.E. 296, 303
(Ill. 1906)(finding Illinois County Recorders cannot make alterations
to plat maps);
Dancy v. Clark, 24 App. D.C. 487, 499 (D.C. Cir.

12

The Ohio Supreme Court first addressed a County Recorder’s
powers in 1961, finding that “in the performance of [a Recorder’s]
duties, he, as a ministerial officer, may exercise some discretion
and is not absolutely required to accept, record and index every
instrument presented to him.”

State ex rel. Preston v. Shaver,

173 N.E.2d 758, 760 (Ohio 1961)(finding the County Recorder was
not required to record instruments granting the state an easement).
This Court recently agreed with that sentiment.

In holding that

a Recorder does not have an affirmative duty to refuse to file
improper leases, this Court found that “the Recorder may exercise
discretion in refusing to record written instruments that do not
conform

to

statutory

requirements.”

Wiley

v.

Triad

Hunter

Gathering LLC, 2:12-CV-605, 2012 WL 6611480, at *10 (S.D. Ohio
Nov. 30, 2012), Report and Recommendation adopted sub nom. Wiley
v. Triad Hunter Gathering, 2:12-CV-605, 2012 WL 6616164 (S.D. Ohio
Dec. 19, 2012)(citing Preston, 173 N.E.2d at 760; OHIO REV. CODE ANN.
§ 317.13(B)).
Wiley and Preston only speak to whether the Ohio legislature
has given the County Recorder discretion to refuse to file nonconforming documents.

In doing so, Wiley and Preston merely echo

the Ohio Revised Code in stating a County Recorder can read a deed
or plat map and exercise his or her independent judgment to

1905)(“The courts will sustain him when he acts within the limits of
the discretion reposed in him.”).

13

determine whether the document meets the requirements for filing.
See OHIO REV. CODE ANN. §§ 317.13(B); 317.082(B).
The issue before the Court is different. Plaintiff’s request
would require the Recorder to alter documents already on file. No
Ohio cases appear to have addressed this issue. Instead, an Ohio
Attorney General provided his opinion that the legislature has not
granted the Recorders the power to retroactively alter previously
recorded documents.

See Op. of Anthony J. Celebreeze Jr., OAG 90-

103, 1990 WL 547013 (Dec. 31, 1990)(advising that an Ohio County
Recorder does not have the authority to change a record of a
mortgage after recording). 5
This limitation is the proper view of the Recorder’s powers.
Though the Ohio legislature has given the Recorder the power to
redact parts of a deed or plat map before filing, the legislature
has not given the Recorder the power to make those changes to
documents after filing.

Ordering the 89 Defendants in this case

to redact any mention of a racially restrictive covenant would be
requiring the County Recorders to go beyond the limited powers
that the Ohio Legislature has granted to them. (See D. Hamilton
Co. Reply, Doc. # 43 (arguing the Ohio legislature should have
been joined as a Defendant, because relief cannot be granted
without it)).

5

Another Attorney General also opined that the Recorder’s discretion is
limited by the legislature. See Betty D. Montgomery, OAG 97-055, 1997
WL 797993 (Dec. 29, 1997)(finding a County Recorder does not have the
authority to record a land patent).

14

Therefore, this Court does not have the power to redress the
Plaintiff’s alleged injury by requiring the County Recorders to
redact all documents on file with racially restrictive language.
And

without

a

showing

Constitutional standing.

redressability,

the

Plaintiff

lacks

See Friends of the Earth, 528 U.S. at

180-81.
III. Conclusion
Because Plaintiff is required to meet the Constitutional
requirements of injury, causation, and redressability, and because
Plaintiff is unable to meet any of those three prongs, Plaintiff
does not have standing to bring this case.
Therefore,

having

reviewed

this

matter,

and

being

sufficiently advised,
IT IS ORDERED that Defendants’ Motions to Dismiss (Docs. 19,
25, 30, 31, 32, 33, 34, and 35) are hereby GRANTED.
judgment shall enter concurrently herewith.
This 10th day of May, 2017.

15

A separate