Harris v. Capital Growth Investors XIV

BROUSSARD, J., Dissenting.

Until today, it was well established that the Unruh Civil Rights Act (Civ. Code, § 51 et seq.; hereafter the Unruh Act or the Act) protected the citizens of California against all arbitrary discrimination in the marketplace. In full retreat from the goal of equal access and opportunity, the majority today limit the Act so as to insulate invidious discrimination on the basis of economic class from legal redress. When we permit a landlord to refuse to rent an apartment because a tenant, who can afford to pay the rent, fails to meet an arbitrary income test, we promote rigid and invidious class distinctions which not only injure individuals who seek to better their positions, but which also undermine the vitality of the American dream of social mobility. I protest an interpretation of the Act that overturns established case law, ignores the intent of the Legislature, and damages our social fabric.

In this case, plaintiffs allege that, though they can afford to pay the rent which the landlord is asking for a rental unit, they were excluded from applying for the unit because of the landlord’s policy of excluding any applicant whose monthly income is not greater than three times the monthly rent. The Court of Appeal found, consistent with our opinion in In re Cox (1970) 3 Cal.3d 205 [ 90 Cal.Rptr. 24 , 474 P.2d 992 ], that plaintiffs had stated a cause of action under the Unruh Act. I would affirm the decision of the Court of Appeal.

I.

In In re Cox, supra, 3 Cal.3d 205 , a young man saw a friend of his at a shopping center. The young man’s friend wore long hair and dressed in an *1177 unconventional manner. A security officer representing the shopping center soon ordered the young man and his friend to leave the shopping center, apparently because the guard wished to exclude the friend with long hair and unconventional dress. This court held that long hair and unconventional dress were unacceptable bases for exclusion.

This court recognized that the Unruh Act enumerated only certain categories of persons that expressly enjoyed protection of the Act. In light of the judicial and legislative history underlying the enactment of the Unruh Act in 1959, however, we concluded that the “identification of particular bases of discrimination—color, race, religion, ancestry, and national origin—added by the 1959 amendment, is illustrative rather than restrictive. [Citation.] Although the legislation has been invoked primarily by persons alleging discrimination on racial grounds, its language and its history compel the conclusion that the Legislature intended to prohibit all arbitrary discrimination by business establishments." (In re Cox, supra, 3 Cal.3d 205, 216 , italics added.)

Our conclusion was based not on the premise that there is something particularly pernicious about discrimination based on one’s clothing or personal appearance as opposed to other possible bases for exclusion, but rather on our conclusion that the Act bars all forms of arbitrary discrimination. Indeed, it is difficult to imagine In re Cox, supra, 3 Cal.3d 205 , standing for any proposition other than that all forms of arbitrary discrimination are prohibited. Yet the majority suggest that Cox and its progeny “ ‘ “must be construed with reference to the facts presented by the case[s].” ’ ” (Maj. opn., ante, at p. 1157.) In rejecting the clear language of Cox , however, it is unclear what the majority would agree that Cox held: Is arbitrary discrimination against “personal characteristics,” against long hair and unconventional dress, or against friends of those with long hair and unconventional dress, proscribed under the majority’s present interpretation of Cox “holding”? If our holdings were indeed only “construed with reference to the facts presented by the case,” the majority opinion today could only be cited as holding that minimum income policies, rather than “economic discrimination” generally, lie outside the purview of the Unruh Act. It is clear that such a reading would not comport with the intent of the majority nor, I would concede, the holding of their opinion.

In any event, until today courts of this state have understood In re Cox, supra, 3 Cal.3d 205 , to hold that all arbitrary discrimination by a business establishment is prohibited by the Unruh Act. (See, e.g., Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28 [ 219 Cal.Rptr. 133 , 707 P.2d 195 ]; O'Connor v. Village Green Owners' Association (1983) 33 Cal.3d 790, 794 [ 191 Cal.Rptr. 320 , 662 P.2d 427 ]; Marina Point, Ltd. v. Wolfson (1982) 30 *1178 Cal.3d 721, 732 [ 180 Cal.Rptr. 496 , 640 P.2d 115 , 30 A.L.R.4th 1161 ]; Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 291 [ 200 Cal.Rptr. 217 ]; Curran v. Mount Diablo Council of the Boy Scouts (1983) 147 Cal.App.3d 712, 733 [ 195 Cal.Rptr. 325 , 38 A.L.R.4th 607 ]; Winchell v. English (1976) 62 Cal.App.3d 125, 130 [ 133 Cal.Rptr. 20 ].) The Attorney General, interpreting the Unruh Act in 1976, advised that discrimination based on one’s receipt of public assistance was arbitrary and therefore, under this court’s holding in Cox , forbidden. ( 59 Ops.Cal.Atty.Gen. 223 , 225 (1976).) Commentators, too, agree that Cox prohibits all arbitrary discrimination. (See, e.g., 5 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 11.41, pp. 65-72; 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 748, pp. 241-242; Cal. Residential Landlord Tenant Practice (Cont.Ed.Bar 1986) §2.11, p. 86.) In short, whatever ambiguity the majority read into the holding of Cox , that ambiguity has not been perceived by this court, lower courts, or the public.

“The doctrine of stare decisis necessarily implies that the fact a current majority disagrees with a prior decision is not in itself sufficient to justify overruling it. Otherwise all prior decisions would be exposed to continuous challenge, the concept of precedent would be meaningless, and the decisions of this court will sway with the political winds.” (People v. Anderson (1987) 43 Cal.3d 1104, 1164 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ] (dis. opn. of Broussard, J.).) In spite of the fact that the majority do not expressly overrule our holding in In re Cox, supra, 3 Cal.3d 205 , they still run afoul of the doctrine of stare decisis by limiting Cox to its facts.

In addition to their disregard for stare decisis, the majority refuse to acknowledge the intent of the Legislature and its explicit adoption of Cox and its progeny. In Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721 , we ruled that an apartment complex owner was prohibited from discriminating against children or families with children by the Unruh Act. In coming to this conclusion, we referred to legislative material which clearly reflected the Legislature’s understanding that all arbitrary discrimination was prohibited by the Unruh Act. 1 When the Legislature added Civil Code section *1179 51.2 to the act, it explicitly adopted our holdings in Marina Point (discrimination against families with children arbitrary discrimination on the basis of age) and O’Connor v. Village Green Owners’ Association, supra, 33 Cal.3d 790 (same): “This section is intended to clarify the holdings in Marina Point, Ltd. v. Wolfson (1982), 30 Cal.3d [721], and O’Connor v. Village Green Owners Association (1983), 33 Cal.3d 790 .” (Civ. Code, § 51.2, subd. (b).) The only exception the Legislature made in adopting the holdings of Marina Point and O’Connor was to allow for senior citizen housing in Civil Code section 51.3.

The majority’s suggestion that the Legislature did not agree with, or was unaware of, the judicial interpretations of the Unruh Act is staggering. (See maj. opn., ante, at p. 1155 et seq..) Not only has the Legislature “not taken specific action to overrule [In re Cox and its progeny]” (id. at p. 1156), it has reenacted the Unruh Act and specifically adopted our interpretations of the Unruh Act. As we have noted in this context, “[i]t is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.” (Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 734 ; see also Estate of McDill (1975) 14 Cal.3d 831, 837-838 [ 122 Cal.Rptr. 754 , 537 P.2d 874 ].) The “legislative silence” to which the majority allude (maj. opn., ante, at p. 1156) is patently inapplicable here: the Legislature has twice amended and reenacted the exact provision at issue in this case.* 2

Notably, in adopting the holdings of Marina Point, supra, and O’Connor, supra, the Legislature did not amend Civil Code section 51 to prohibit discrimination against age. Yet the explicit language of Civil Code section 51.2 makes it clear that the Legislature expected that Civil Code section 51 would be construed to prohibit discrimination based on age—even though it is not an enumerated category. To consider “the repeated emphasis in the language of [Civil Code] sections 51 and 52 on the specified classifications of race, sex, religion, etc.” as “highly persuasive, if not dispositive” in our construction of the Unruh Act (maj. opn., ante, at p. 1159) would be entirely antithetical to legislative intent.

Our decision in In re Cox, supra, 3 Cal.3d 205 , held that all arbitrary discrimination by a business establishment is proscribed by the Unruh Act. *1180 Subsequent judicial interpretations and legislative enactments have affirmed that holding. Thus the principles of stare decisis and deference to legislative intent compel me to conclude that the Court of Appeal was correct in recognizing plaintiffs’ cause of action under the Unruh Act.

II.

In order to find that “economic discrimination” is not covered by the Unruh Act, the majority reject In re Cox’s holding that the Act prohibits all arbitrary discrimination against business enterprises. In the absence of judicial precedent supporting the majority’s desired result, the majority seize upon a legislative intent, undiscovered until today, from the principle of ejusdem generis: “ ‘ “where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class.” ’ ” (Maj. opn., ante, at p. 1160.) The majority then engage in a dubious application of this principle to ascertain a “common element” of the enumerated categories of the Unruh Act: “The categories involve personal as opposed to economic characteristics—a person’s geographical origin, physical attributes, and personal beliefs.” (Maj. opn., ante, at p. 1160.) 3

The reference to “personal characteristics” is of little value to courts and practitioners attempting to apply the Unruh Act in the future. There is no description of what, exactly, constitutes a personal characteristic. The majority opinion has listed three examples: geographical origin, physical attributes, and personal beliefs. Are personal characteristics therefore only origin, attributes, or beliefs, or is this list illustrative rather than restrictive? 4 Indeed, the term “personal characteristic” does not admit of clear definition, save for the majority’s pointed emphasis that it does not include “economic characteristics.”

*1181 Starting with our observation in Koire v. Metro Car Wash, supra, 40 Cal.3d 24, 36 , that several forms of economic discrimination are unassailable under the Unruh Act, including stated price and payment terms, the majority proceed to assert that this dictum cannot be distinguished from the instant case. The majority make a facile comparison between the “discrimination” discussed in Koire and minimum income policies: “The minimum income policy is no different in its purpose or effect from stated price or payment terms. Like those terms, it seeks to obtain for a business establishment the benefit of its bargain with the consumer: full payment of the price.” (Maj. opn., ante, at p. 1163.) While landlords’ pricing decisions are inviolable under the Unruh Act, credit policies in housing, including exclusionary policies among those who can afford to pay the stated price, are not. The comparison fails to account for the fact that a minimum income policy may be used in a way that stated price and payment terms may not be used—to discriminate against poor people.

The effect of the majority’s holding today is that the poor no longer have standing to challenge arbitrary and invidious discrimination against them as a class under the Unruh Act. We know that the poor are discriminated against. Sociologists have observed that the “majority” of Americans explain poverty as being the result of an individual’s personal characteristics. One nationwide public opinion survey showed that the reasons for poverty most cited by the majority of the survey’s respondents were “[pjoor management of personal resources, loose morals, lack of thrift, and so forth . . . .” (See Hendrickson & Axelson, Middle-Class Attitudes Toward the Poor: Are They Changing? (June 1985) Social Service Rev. 295, 296.) 5 Such misguided attitudes about the poor, if used without giving due consideration to a particular individual’s characteristics, would clearly constitute arbitrary discrimination against a poor customer. A retail merchant should not be permitted to refuse to sell to a person willing and able to pay the stated price merely because the merchant refuses to deal with “poor” people.

Unfortunately, discrimination against poor people is not confined to attitudes. Prior to 1977, widespread use of “redlining,” systematically refusing loans to people living in relatively poor urban areas, led the United States Congress to enact the Community Reinvestment Act, 12 United States Code section 2901 et seq., to curb this practice. Though not specifically referring to the “poor,” it is clear that in prohibiting discrimination based on a credit applicant’s receipt of public assistance, the United States Congress wished to protect the nation’s poor from discrimination through the Equal Credit Opportunity Act. ( 15 U.S.C. § 1691 (a).) Similarly, the *1182 California Attorney General opined that persons receiving public assistance benefits were protected by the Unruh Act, primarily because receipt of public assistance benefits “do[es] not necessarily correlate with qualities undesirable in tenants or disruptive of a living environment.” (59 Ops.Cal.Atty.Gen., supra, at p. 225.)

It is obvious that a minimum income policy might be invoked legitimately by a business to ensure payments for goods sold on credit; it should be equally obvious that minimum income policies might be abused, motivated solely by a discriminatory animus. A jewelry store could forbid the entrance of lower income patrons on the theory that lower income patrons buy jewelry less frequently and steal jewelry more frequently. An auto insurance company could refuse to do business with persons of low income by asserting that low income drivers are worse drivers as a class and thus tend to be more accident prone. While these businesses would undoubtedly be able to suggest economic reasons for their policies, we have not accepted such pretexts in other Unruh Act cases. (See, e.g., Koire v. Metro Car Wash, supra, 40 Cal.3d 24, 32 ; Marina Point, Ltd. v. Wolfson, supra, 30 Cal.3d 721, 740, fn. 9 .) I am unable to understand a policy that would protect from arbitrary discrimination based on a person’s sex or age, but not based on that person’s poverty.

Finally, I do not understand why poverty is any less a “personal characteristic” than long hair or unconventional dress. Neither is immutable; both personal appearance and poverty are likely to inspire in us certain stereotypical views that will likely color our perceptions. Indeed, the person with long hair or unconventional dress is far more able to escape from discrimination based on these characteristics than the person suffering the ills of poverty; by contrast, to escape from poverty the poor often must first escape unsanitary conditions, unsafe neighborhoods, and ineffective schools. The chilling irony of the majority’s decision today is that, because they are being discriminated against for “economic” rather than “personal” characteristics, the poor may no longer challenge a landlord’s arbitrary income policy, even when it is that policy—rather than the cost of the housing—that prevents them from moving into better housing in better neighborhoods with better school facilities. The majority’s implicit assumption that such discrimination does not occur is unfounded, and its holding insulating such discrimination from review under the Unruh Act is unconscionable.

III.

Stare decisis and legislative adoption declare that the Unruh Act was intended to proscribe all arbitrary discrimination. Using a single rule of construction, the majority greatly limit the scope of the Unruh Act with a *1183 term, “personal characteristics,” that is sure to invite litigants to press the courts to limit the Unruh Act even more than this court does today. In the meantime, the majority have emphatically declared that from today, the Unruh Act may not be used by the poor to remedy arbitrary discrimination by business establishments against those in poverty. For reasons discussed above, I cannot join in the majority’s abandonment of established principles and their significant weakening of the important protections of the Unruh Act.

Our discussion in Marina Point was sufficiently conclusive that it bears repeating: “In 1974, the Legislature amended [Civil Code] section 51, reenacting the prior provisions of the statute and adding ‘sex’ to the specifically enumerated bases of discrimination listed in the Unruh Act. In sending the bill to the Governor for his signature, the Chairman of the Select Committee on Housing and Urban Affairs explained: ‘The purpose of the bill is to bring it to the attention of the legal profession that the Unruh Act provides a remedy for arbitrary discrimination for arbitrary discrimination against women (or men) in public accommodations which are business enterprises. This bill does not bring such discrimination under the Unruh Act because that Act has been interpreted as making all arbitrary discrimination illegal, on whatever basis. The listing of possible bases of discrimination has no legal effect, but is merely illustrative.’ (Original italics.) The chairman attached to his letter a legislative counsel *1179 opinion, discussing our decision in Cox and confirming the chairman’s view of the legislation.” (Id. at p. 734.)

Whatever the Legislature’s “primary concern,” I do not accept the majority’s suggestion that the Legislature does not extensively “study and refine the language used in judicial decisions.” (Maj. opn. at p. 1157.) Even if this were the case generally, it is beyond question that the Legislature was aware of our interpretation of the Unruh Act.

In light of our holding that the list of classes enumerated in the Unruh Act is illustrative, the majority uses a familiar rule of construction inappropriately, in a way that was condemned by the United States Supreme Court years ago: “The rule of ejusdem generis is a familiar and useful one in interpreting words by the association in which they are found, but it gives no warrant for narrowing alternative [or, in this case, additional] provisions which the legislature has adopted with the purpose of affording added safeguards. ‘The rule of “ejusdem generis” is applied as an aid in ascertaining the intention of the legislature, not to subvert it when ascertained.’ ” (United States v. Gilliland et al. (1940) 312 U.S. 86, 93 [ 85 L.Ed. 598, 604 , 61 S.Ct. 518 ].)

Because the phrase “personal characteristic” is so amorphous, it is not even clear how the cases from which the majority derive the phrase fit this characterization. In In re Cox, supra, 3 Cal.3d 205 , it was not the young man with long hair and unconventional dress whose action was validated by this court, but that young man’s friend. Was the friendship a “personal characteristic”? Similarly, in Rolon v. Kulwitzky, supra, 153 Cal.App.3d 289, 292 , was the plaintiff’s homosexuality a personal characteristic, though not a physical attribute or a personal belief? I do not find the unifying theme underlying these cases apparent.

See Feagin, Subordinating the Poor: Welfare and American Beliefs (1975) for an extended discussion of the stigma that has generally attached to the poor.