Respondents Brief — Reitman v. Mulkey

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- oye ° | ranpe ¢ &

r we. be i”, .

| | MAR 2

-IN THE cad ;

Supreme Court of the une |

_- October Term, 1966

No. 483°

NEIL REITMAN, et al., and CLAREN CE SNYDER,

; . Petitioners, °

VS.

Lincotn W. MULKEY, e al., and Witrrep J. PREN-

DERGAST, and CaroLaA Eva PRENDERGAST,

Respondents.

BRIEF FOR RESPONDENTS. |

HERMAN F., SELVIN,

A. L. WirIn,

FRED OKRAND, |

Davip R. CADWELL,

JosepH A. BALL,

NATHANIEL S. COLLEY,

_ 523 West Sixth Street,

-. Los Angeles, Calif. 90014,

Attorneys for Respondents.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

SUBJECT INDEX

3 Page

EE FINI nciccpsssiscnsanabnmainivonnanenind Saiceieaaiiadliauanbeilaiiie l

DONE © sicnniicrrrcrsmansiniansiies -. ; inn.

_ Constitutional Provisions NE scicinsinsrictinn seapiediet 3

Restatement of Questions Involved ..............---.--s+0+0+ $3

Statement of the Case sooo. sien lacie a

_ Summary of, the Argument ......... Obeatr eae . 22.

IN — itrenntiiiimnninn Seca ere RoR 23s."

The State of California Has Made Racial Dis- —

crimination in the Course of Dealing in the

Sale and Rental of Residential Property .a -

Right Secured by the State Constitution. In

That Way the State, Flas Conferred the Au-

thority of Its Highest Law Upon the Discrimi-

nation; and Has Acted Unconstitutionally to

Deny Equal Protection of the Laws to the

Viet o8 Ftc ccceenn = — .. 23

Il.

The State Acts Within the Meaning of the Four-

‘teenth Amendment When, as Here, It Becomes

‘Significantly Involved in Private Action That

Impairs Fourteenth cee Y Right - eocehionnes 29

II.

Since the Fourteenth Amendment’s Prohibition

Upon the States Imports a Duty on Their Part

to Protect Those Within Their Jurisdiction .

Against Abridgement or Impairment: of the

Rights Secured by the Amendment, Repudia-

_ tion by a State of Its Duty of Protection Is

Action Within the Amendment's Reach . sain 40

ii.

: ‘IV. .-

Repeal of Existing Legislation Prohibitory of

Racial Discrimination, for the Purpdse of

Clearing the Way for Resumption and Con-

tinuation of the Discriminatory Practices, Is

Itself an Unconstitutional Denial of Equal Pro- *

tection of the Laws to Those papentoumy Af-

fected by the Practices ................... one .. 48

¥. ;

The Civil Rights Acts, Constitutionally Enacted

to Enorce the Fourteenth Amendment, Pro- —

hibit Racial Discrimination by Private Persons.

in Respect of the Acquisition, Ownership and

Enjoyment of Property: Section 26, Being In-

consistent With These Federal Statutes, Is In-

validated by the Supremacy Clause ......... pasate 55

1. Even Though Private, the Discriminatory

Conduct Here Involved Is Barred by the

Civil Rights Acts ......... — ee

2. Petitioner’s Discriminatory Conflict~ Was

Done Under Color or Pretense of Law and

«in That Respect Is Contrary to the Civil

I BAIR siceniivinisieniestitinitirciiomniivcnnaimveniisnnan . 61

The Court Below Properly Held That the Power .

of the State’s Judicial System Could Not Be

‘Enlisted to Enable One in the Rental Business

to Carry Out That: Business in a Racially Dis-

criminatory Manner .................-..0..-..... onions 63

res 8

COnChsion ........-.-snsscesscsersesnessnssenseecensneneneuqnescsensseanseses 68

4 ‘

SAN ee en A mien te! ee eet te ee aye ae an -_/ —

dit.

TABLE OF AUTHORITIES CITED

: . - Cases Page ~

Abstract Investment Co. v. Hutchinson, 204 Cal.

App. 2d 242, 22 Cal. Rptr.9309 ......... . .. 63

Adams v. Saenger, SOR US OD Breese 6

Anderson v. Martin, 375 U.S. 399 o....... 31, 37, 44

Bailey vy. Alabama, 219 U.S. 219 .eccccccscccssscssssssssss00 23 :

Baldwin v. Morgan, 251 F.2d 780 ......cc.ssssssssessseeeie 61

Banks v. Housing Authority, 120 Cal. App. ad l,

260 P. 2d 668, cert. den. 347 U.S. 974 ....W.2... ,.

Barrows v. Jackson, 346 U.S. 249 .......31, 44, 64, 65

Baskin v. Brown, 174 F. 2d 391 ...... aceciald 31, 42,.50, 51

Bell v. Maryland, 378 U.S. 226 ..........28, 33, 37,38, 41

Beneficial Loan Soc. v. _— 215° Cal. 506, 11

P. 2d 857 sssoreeroretasanenernapremnmnenegfenecntnenasnennnanes 17

Birmingham v. Monk, 185 F..2d 859, cert. dert. 341

Ss RD siecniemescnibeeeieisetlinnvaneiicbaaiseniaiiiaan ..35, 36

‘arene v. Board of Education, 204 F. Supp. 150 ..

saqeetenssnstensenssentennsensenssensscesescensesnarecteeseneensennsensensses 31, 42

Brinkerhof? etc. Co. v. Hill, 281 U Ae cite 45

Brotherhood of R. preercs v. Virginia, 377 U.S..

B * cteissnedsienemstaneveitiehiaissnasaiatlamininn senbiebaeiidiinaiien 45

‘Brown v. Board of ee, 349 U.S. 204 . etcennnlbed 43

- Brown v. Board of Education, 347 U.S. 483 ........ a4

Buchanan v. Warley, 245 U.S. ‘60 ....:.......35, 41, 44, 56

Burkhardt v. Lofton, 63 Cal. App. 2d 230, 146 P.

, 2) oe cians saienieasiesloiniaslianipsiailies

Burks v. Poppy” Conat. Co., 57 Cal. 2d 463, 370 |

P. - 313,. 20 Cal. Gs GI sistenstinekibeuatcties 8, 11

aa Soke SP le et vi sd het tet il” HD ye A!

Pi ear 25 ae Ales

CP RNG ed Se Sn OE OO es ee tee ee ee

’ - i

je) LA Adlai 00 A hartie eit el ge ho time OI bet PA AY Reed whee anes ae

iv.

Page

Burton v. Wilmington Parking Authority, 365 U.S.

I Asati linc disnmacinhaninibiament 11, 30, 31, 32, 44, 57 .

"Catlette 'v. "United States, 132 F. 2d 902 ceescccen-n.. 41

Central Sav. Bank v. Lake, 201 Cal. 438, 257 Pac.

” 4, ee OSG SES Ssh tO A SEN OO, See 3

INET”. ‘aathiidisdabtannsennicnsandinenedeesnssusethesatanatuletshaanterse 6

Civil Rights. Cases, 109 U.S. 3 ~.0.002000...... 41, 55, 58, 61

Colorado Anti-Discrimination Com. v.° Case, 151

EAM. 250, SOO BS BO BF nenscnsssqeccssecseressenee itnabinsiatas 66 -

Cooper Ss. BS Pe ee 42

Cramp v. Board of Public Instruction, 368 U. _ 278

Crees v. Cal. anna Board, 213 Cal. App 2 24 195,28

_ Cal. Rptr..621 sipiniaiashtsseteathnaiinipiicnnicndniisiiphackin 17

Crooks v. People’s Fin. etc. Co. aan Cal. App.

RUD Fil, Be BR, BS nnnsesveccccrscceessesedicssesnsenes 17

~~ Crowell v. Isaacs, 235 Cal. App. 2d 755; 45 Cal.

Rptr. 566 - Siipanielladathek Aida ahipheeiiiidiianniakaiciagiaen 5

ieee v. Hokr, 31 Cal. 2d oH, 193 P. 2d 742 ..

a m Tee - 23

Derrington v. Plummer, 240 F. 2d 922 baal eee 31, 32

Don Wilson Builders v. Superior Court, 220 Cal.

‘App. 2d 77, 33 Cal. Rptr. 621 -.......-2--sseeceeneceeeseesens 8 .

-Eastern R, R. Conference v. Noerr Motor Freight,

SE, BET Ginsieaiscregnessniqnesd csheaetbqucoanisipnesnaboncinnsimiins 45

, ae

Page

meinen Vv Newton, ee IY siscresaccncntbenenaionaniintics

SAE ae RT CE NE 31, 38, 44, 49, 50, 54

Forest Lawn Memorial Pk. Assn. v. De Jarnette,

79 Cal. App. 601, 250 Pac. 581 icadhadehcibaadla Sones opiate

GoddardIn re, 24 Cal..App. 2d 132, 74 P. 2d 818 .. 17

Gormillion v. Lightfoot, 364 U.S. 339 .....c.ccieeee-- 46

“Gospel Army v. Los Angeles, 331 5 S| ane 3

Hamm v. Rock Hill, 379 UsS. 306 .-sssssssocsccssssesssoe 61

Hanley v. Donoghue, 116 USS. 1 ee ed ee

Peapemen s. Tilet, 7S OS. GOD ccc 35

Heart of Atlanta Motel v. United States, 379 U.S.

er hiansicicdtaunebbehaniipaideshasiqunanenniepsatenniilinhiontinidielee -11, 61

Hill v.. Miller, 64 Cal. 2d 757, 413 P. 2d 852, 51

ap MUO IIIT. senihcoensschnsestinstainaedbnatasdstiesegpinoinachas 1, 66, 67

Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278

slatted cecenalcaacneeabanakibi iiioalen a a

Hurd v. ‘ian $34 U.S, 26 ees . 56

. Jackson v. Pasadena School Dist., 59 Cal. 2d 876,

382 P. 2d 878, 31 Cal. Rptr. 606 .............

sassiaeiateteladuasneebiaibia inna Oy Bie Ge. oO 45, 47

‘James v. Marinship Corp., 25 Cal. 2d 721, 155 P>

Ener atransl cern ont On tierra ore ... 47

Janss Investment Co. v. Walden, 196 Cal. 753, 230

FONE: = aisetisinniciasehsesprsipiclhctieiainiiceciaaenbaaecpanidiniibccalotin 12

Katzenbach v. Morgan, 384 U.S. 657 .......... 40, 55, 56

Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321, 20

Cal. Rptr: 617 .......... seonicniaiilansnalaessacaneiRaipiuamibadaniniin 8

Lombard v. Louisiana, 373° U.S. 267 ............ 31 37, 46

Lopez v. Seccombe, 71 F. Supp. 769 -.......cccccsscsesssee: 12

vi.

: ; Page

Los Angeles Investment Co. ac Gees, 181 Cal. 680,

Se tN NEE eciccceioeinscinienieciasbeobicasipbephcleibiedinianaiiigss 12

Lucas v. Forty-Fourth General Assembly, 377 U.S.

SE sacasececpuiasshveedikicasmciniceaesghcacinh aaaacccaealndeetssanctoi 2

Lynch v. United States, 189 F. 2d 476, cert. den.

Ue tc I, Sesidtaasseennstiraeecisincreencieniddccanshihgeintpeaabainns 41

Marbury v. Madison, 1 Cranch 137 °...........: imnee, 45

Market Street R. Co. v. Railroad Com., 324 U.S.

TEE ovininsieaiiclebinabincasatiencnepianantineealaiueananiseiinianlbesabicieigaiann 3

Marsh v. Alabama, 326 U.S. 501 a oa 27, 28, 31

Massachusetts Com. Against Discrimination v. Col-

angelo, 344 Mass. 387, 182 N.E. 595 ow... eee 66

McCabe v. A. T. & S. F: Ry. Co., 235 U.S. 157 ..

sasietlc sisi lhioaaeieinagieg anna sidisahioicadeeipid acla 25, 26, 31

McCulloch v. Maryland, 4 Wheat. 316. .....220020000... 2

Millar v. Taylor, 4 Burr. 2302, 98 Eng. Rep. 201 .. 46-

Monroe v. Pape, 365 U.S. 167 ......... healed 29, 61, 62

Muir v. Louisville Park Theatrical Assn., 347 U.S.

rg TA, Ge Oe Ee eekitecetittcseteie 31, 32

N.A.A.C.P.. v. Alabama, 375 U.S. 449 os. 31-32

Er .. VC: TN, SIE UB, FED coccsscncenisstinesensicn 45

Near v. Minnesota, 283 U.S. 697 ..........-.-cecesseseceosese 23

New York Times v. Sullivan, 376 U.S. 254 ...2.... 67

Nixon v. Condon, 286 U.S. 73 ........ spaile tect ends 52

Petes Wi Biewenia, FID UIT. SOG ssiscscicesctpicctccns 52

Oklahoma v. United states Civil Serv. Co., 330

U.S. wl eileiiensinnacescanspea es milipannibeineailainanicbanictiiinsltiad 39

Vii.

Page

Pennsylvania y. nome of. Directors, 353 U.S. 230 —

sicuaalesaahsienadaadualenadicieaeiaieiniatalidebasbalaadioenaiaaieisaacsneatons 31, 44

Pennsylvania v. Nelson, 350 U. S. 497 . arene tes a

People v. Hall, 4 Cal. 399 ........ puieandcakeabeimoiaani eeeetg| |

People v. Mayes, 113 Cal. 618, 45 Pac. 860 ........ ae

People v. Ottey, 5 Cal. 2d 714, 56 P. 2d 198 .......... 17

- People v. Stralla, 14 Cal. 2d 617, 96 P. 2d 941 ...... 6

People v. Torres, 56 Gal. 2d 864, 366 P. 2d 823, 17

Cal. Rptr. 496 ............sciscesssessesessssessessecsnenaseeneseesees 6

People v. Tossetti, 107 Cal. App. 7, 289 Pac. 881 .. 6

"Peterson v. Greenville, Pe SE OE cectaohiesasnen "38

Plessy v. Ferguson, 163 U.S. 537 ....ssssssscsssssceemeeces 44

Pope v. Atlantic Coast Line R. Co., 345 U.S. 379... 3

Public Utilities Com. v. Pollak, 343 U.S. 451 ..........

PREIS LOL EIN RESTS AE SoS NA OE 26, 27, 31, 32.

Renaud v. Abbott, 116 U.S. 277 ........sssssceeceseeees 6

Reynolds v. Sims, 377 U.S. 533 -evssssessssseyeereeseteereereee 43

Rice v. Elmore, 165 F . 2d 387, cert. den. 333 U. 5.

Pe aitacusaccicaguiosivecieraaaivghoamintneacansanietiniengies 31, 42, 50

Richmond v. Deans, 37 F. 2d 712, aff. 281 U.S.

ee na m eeeinetnasensic is ... 36

Robinson v. Florida, 380 U.S. 153 ae

Robinson v. Florida, 378°U.S.. 155 -........ssssesesest enna 38

Rogers v. Cady, 104 Cal. 288, 38 Pac. 81 Pee iE

Screws v. United States, 325 U.S. 91 .........29, 61, 62

Sei Fujii v. California, 38 Cal. 2d 718, 242 P. 2d

ae « on

staat wD TR, Fe Gre E eetcnietincteateiiscnetnenes

we----12, 26, 33, 44, 46, 63, 64, 65, 67

* rai I Sots coal “—

Viii.

: . Page

Silver v. Brown, 63 Cal. 2d 270, 405 °P. 2d 132, 46

Ol, UGE. POD scans. atnes semasenveretnaienene sccindediceiencispi 43

Silver v. Silver, 280 U.S. 177 ccecccssssectesscccscscssssessseaee 48

Simkins v. Cone Memorial Hospital, 323 F. 2d 959,

gure. iam. SFG US, GOR csccctecsctcccessans 25, 30, 31

. Smith v. Allwright, 321 U.S. 649 oo. oh, 52

South Carolina v. Katzenbach, 383 U.S. 301 .......... ‘. 46

Southern Pacific Co. v. Gileo, 351 U.S. 493 .......... 3.

Swann -v. Burkett, 209 Cal. App. 2d 685, 26 Cal.

eI: TREO NS RR cle Lea AR 8

Tate v. Department of Conservation, 133 F. Supp.

SO, BEES BOE TE, BO NS oc snsiseineiancetnannsenratinameceny SR»

Terry v. Adams, 345 U.S. 461 Ret Se eT

ssl clllaaiaedlanihumengiaiel 29, 31, 40, 42, 44, 45, 51, 56, 64

Testa Lk a ERA arE Deron a; a

Thomas v. Collins, 323 U.S. 516 -aescccs--sssisinesssesnsee 45

Truax v. Corrigan, 257 U.S. 312 .......... 41, 44, 45, 47

Tyler v. Harmon, 158 La. 439, 104 So. 200, 160

i ee We FIED sceuiticdictinasinnssidieedecaaduiniteiaiicaniiaatn 35,

United States v. Cruikshank, 92 U.S. 542 ..........41, 56

United States v.. Given, 25 Fed. Cas. 1324 .............. 41

_ United States vi Guést, 383. U.S. 745 ..........::..-20002-2

AOS SR een IO 29, 30, 36, 40, 55, 56, 57, 58

United States v. Hall,'26 Fed. Cas. 79 .........,......-.-- 41

United States v. Mosley, 238 U.S. 387... $8, 60

United States v. Price, 383 U.S. i

ctetbisiniannisinuth Oh 4, $6, G6, 3, SS

Valle v. . Stengel, 176 | eee 61

; | rae

Ventura County Harbor District v. Board of Su-

pervisors, 211 Cal. 27 1, 295 Pe ae eas 6

Virginia, Ex parte, 100 U.S. 339... 42, 61.

Virginia v. Rives, 100 Se ccccat ata 58

Ward v. Flood, 48 Cal. 37, 17 Am. Rep. 405:.......... 11

_ Westminster School District v. Mendez, 161 F. 2d

Fee -unen sasaclldicebncigiabampamaitenedaiionia ie cetinatatie iecaadatmcmapsaels 12

Williams v. International Brotherhood, 27 Cal. 2d |

ee Te rs ee I eens careeenibedraacpesnanecmnianasial 47

Williams v. United States, 341 US. NF sheseactabaiaiiees eet

| ON apclemiiabiatdhen ctaiuamiidiuanactitiatn ee 29, 55, 56, 59, 61, 62

Bese v. Loew’s Inc., 142 Cal. App. 2d 183, ea

ees mo

‘Wysinger v. Crookshank, 82 Cal. 588,23 Pac.’ 34 ..

- Yick Wo v. Hopkins, 118 U.S. 356 ................ . ae y +

| Miscellaneous

Los Angeles Cotinty Commission On Human Rela-

tions, Population Housing In Los Angeles

Comey CIB), Bw inevsciccxecceienrsincersenscpnicnsetoion A

Senate Report No. 872, 88th Cong. 2d. Sess., p. 16.. 11

U.S. Commission on Civil Rights (1961), 50 States

Bert, Pe ABN apnea nscccescersncsipies 12, 13, 14

U.S. Commission on Civil Rights Report (1961),

Book 4, Housing, pp. 2-4, 132-138, 144-145 .. my aD

University of California ‘Extension Series On Pub-

_ lic Issues, Race and Property (Diablo Press, 1964,

I OE DF eacnctnesccercntesisciinesibnneinscinaimnion 14, 17

University of California Extension Series On Pub-

lic Issues, Race and Property (Diablo Press 1964,

Denton ed. ), pp. 58-76 ..:..... Nuisnsennscc 14

B..

a Statutes . = -Page

Act of May 31, 1870, 16 Stat. 141. co2......cessssccoqeees 59

~ \California Civil Code, Sec. 51 ........seseeecteteee: heindy BD.

| California EC, ee, BB a scscnstnnserssnrernrss 8, 15

California Code of Civil Procedure, Sec. 1875(3) .. 6

California Code of Civil Procedure, Sec. 187 5(8) -. 6.

* California Constitution, Art. ES Rae

- 3, 6, 8, 9, 10, 14, 15, 17, 18, 19, 21, 22, 23, 24, 25

| 26, 27, 29, 35, 36, 37, 38,.39,.43, 44, 45, 46, 47,

Ce eine Sake iisiaiseisnidsetneiinaschisiiainnannid 48, 50, 33, 61, 62, 63 —

be Constitution, I 24

Califotgia Constitution, Art. I,"Sec. 9 ..ceccceeeiee. 24

California Constitution, Art. I, Sec. 10 .....cseesseone. 24

California Constitution, Art. I, Sec. AS .scssines , ae 24 —

California ‘CorfStitution, Art. IV, Sec. 1 ......... thea ve

California Constitution . (1879) Art. XIX, Sec, 2 .

California Constitution (1879), Art. XIX, Sec. 3 . il

California Constitution, (1879), Art. XIX, Sec. 4°... 11

California Education Code (1943), Sec. 8003 .......... 11

California Education’ Code (1943), Sec. 8004.00... ‘1

California Elections Code, Sec. 3555 ............ Ry 2

California Evidence Code, Sec. 451 EAD oa 6

California Evidence Code, Sec..452_ ..... eS oo Poe

California Health and Safety Code, Sec. 35700 sali 16

California Health ‘and Safety Code, Sec. 35720 ........ 16

California Health and Safety Code, Sec. 35730 ........ 16

“California Laws, 1869-70, p. 838, Sec. 53 cscrcvsee 1

"California Laws, 1869:70; p. 838, Sec. 56...ce.0- 11

2 ee Re eS ha sl

xi.

California Statutes of 1905, Ch. 413, pe 553 eevee. 15

California Statutes of 1947, Ch. 737, . 2 en mo

California Statutes of 1959, Ch. 1681, p: 4074 ..... 16

California Statutes of 1959, Ch. 1866, p. 4424. 8 16

‘California Statutes of 1961, Ch. 1187, p. 2920 ........ 8

Cafffornia Statutes of 1963, Ch. 1853, p. 383 .2..... 16

California Statutes of 1963,.Ch. 1853, p. 3825 ...... 16 _

California Stafutes of 1963, Ch. 1858, Sec. 2, pp.

. 3823, 3824 siieasianaheaanniseaniasnnngetcatdibaiatninninnnninaniinteien 16

California Statutes, 1965, Vol. 1, p. A-15° aa iininee 3

_ Kerr’s California Political Code (1920), Sec. 1662

- _— a , —

_ Kerr’s California Political Cade (1920), Sec. 1669

~; ) a 11

Kerr's California Political Code (1920), Sec. 1670-.

- United States Code,. Title 28, Se. 1257(3) ............. . 3 |

United States Code Annotated, Title 18, Sec. 241 .. .

siesta liiladlaiabainiesediiandignmcasaiedhsieediniianinibiiaiiienii sie 58, 60

United States Code Annotated, Title 18, Sec. 242 ..

dinghies seeseepesannnnnnnnnnnngenneees 58, 59, 60

apse cialeiapinnapttansanieaphie 63

United States Code Annotated, Title 42, Sec. 1283

“2

a Page -

United States Code Annotated, Title 42, Sec. 1982

“O mth SEE Sa Des Sr LR eA on

United States Constitution, Fifth. Anmubienn. 26. 27

United States Constitution, Fourteenth Amendment

- 5, 9, 10, 19, 21, 24, 26, 27, 28, 29, 30, 32, 37, 38

on oe aa 54, 55, 59, 60

United . States Constitution, Fourteenth . Amend-

a ee ae bos — —

United States Conetiiution, F RAIN Amend-

ment, Sec. 5 .. FRET iii ar

| United States Constitution, Fifteenth Amendment .. 42

» 7

| e, ~. Textbooks

‘50 California Law Review, Kaplan, Discrimination

in Califorffia Housing

Columbia University = ed. 1963), The Co-

-lumbia Encyclopedia, “Reconstruction”, pp. 1775-

1776 ihaialeanlatsi Distiicban sihclanhdeaieaiiitinasaai 59

MeEntire, Residence and Race (U. of California

-Press, 1960), pp. 32-67 ..........--.sssecssseees geonnqieensch 4, 15

59 Michigan Law Review, St. Antoine, Color _

Blindness But Nof Myopia, pp. 993, -999-1001,

1013-10140 ecceccecccssnen Se ae ee . 33

pp. 635, 644 .......... ee 14 -

Miller, Race wii Property, pp. 58, 60-64 .........t 13 |

9 Wigmore on Evidence ( " ed. );,, Sec. 2658a, pp. 0.

SEFGEO” wen nll ‘ 13

University. of Michigan Press (1949), Dulles, The

United States Since 1865, pp. 5-28 —

110 University of Pennsylvania Law Review, Hen-

kin, Shelley v. Kraemer: Notes for a Revised:

Opinion, pp. 473, 491 ........2..seeleeeseees ea.

1 University “of San Francisco Law Review, _

Donnici, The Decline and Fall of, California’s

Proposition 14, pp. 12, 20-22, 47-48 ......... 35

IN THE

‘Supreme Court of the United states

* October Term, 1966

No. 483

4 . Pr >

NEIL REITMAN, et.al., ond CLARENCE SNYDER,

» gov, Pony,

fi ~~

us. o \

-Lincotn’-W. Mutxey, et al., ‘and Witrrep J. PREN-

DERGAST, and CaroLa Eva PRENDERGAST,

_» Respondents.

BRIEF FOR RESPONDENTS. |

“ Prefatory Note.

The instant case does not involve the efforts of the -

owner of a private home to choose the person to whom.

~ he will sell or lease. [Cf., Br., 13-14, 23.4] What is in-

volved here is racial discrimination by owners of, mul-

tiple-dwelling buildings who are engaged in the business _

of renting, to ‘the public, apartment units in those build-

ings. [Sée, pp. 7, 9, infra. | Only two of the seven *

cases that were heard together below are here.?

1The “Brief for Petitioners” herein. is referred to by us

merely as “Bf.”

___ The California’ constitutional amendment here involved Br.

3] is referred to in this brief as “section 26.”

. 2Of the five cases that are not here only one [Hill v. Miller, 64>

Cal. 2d 757, 413 P. 2d 852, 51 Cal. Rptr. 689] involved a private-

home owner [see Br., 8-9]; and in its judgment below .went in

favor of the owner,

”

senile .

pad

\ ; . ei

Petitioners assert that section 26 “forbids govern-

Mental restrictions upon the privilege of residential’

owners to choose buyers or tenarfts based upon sex, age, ;

size of fftnily, existence of oe possession of pets,

appearance or whatever .°. 2” |Br .» 1% 18.] That de-

scription of the section is seminal incomplete, and ir-

relevant at’ bar. The fact. is that no one ir this case

claims to have been denied an equal. opportunity to get a

home, because he or she was, of the wrong sex or age,

unseemly i in appearance, kept pets, or had followed the

- Biblical injunction [Gen. 35:11] to be fruitful and:

multiply. What is claimed is that petitioners, being in

the business of renting residential accommodations, de-

_ nied respondents an equal] opportunity to. get a home,

simply and solely because they are Negroes. This case

involves racial discrimination, and the unconstitutional-

ity of it when the State involves itself in it by making

it a constitutional right, and by otherwise encouraging: .

and assisting in its consummation.

The fact, as petitioners several times mention [Br.,

6, 20, 23, 34],-that section 26 was ‘added to the state

constitution: by the direct vote of thg people, is quite

beside the point. The people acting directly may no more

violate the constitution of the United States than may

their legislative, judicial or executive representatives.

[Lucas v. Forty-Fourth General Assembly, 377 U.S.

ry 713, 736-737. Also, see: McCulloch v. Maryland, 4.

Wheat. 316, 405-406. ]

_Jurisdiction.. a

This Court is without . jurisdiction of Reitman v.

Mulkey, one of the two cases brought here pursuant

to a single petition for certiorari. The. judgment in that

case is one of reversal; it leaves the case remanded for

- trial on the merits“ just: as though there’ had never

been a judgment. [Central Sav. Bank v- ‘Lake, 201 Call

438, 443, 257 Pac. 521, 523.] It is not, therefore, a

final judgment.- [Southern Pacific Co: v. Gileo, 351

U.S. 493, 495-496; Pope v. Atlantic Coast Line R.

Co., 345 U.S. 379, 381-382; Gospel Army v. Los

Angeles, 33h U.S. 543, 546-547.] The want of finality

‘ is fatal to this Court’s jurisdiction. [28 U.S. Code,

§1257(3); Market Street R. Co. v. Railroad om, 324

US. 548, 551.]

Constitutional Provisions Involved. -

The single State constitutional provision, to the un-

constitutionality of which ‘under the Federal ‘constitu-

tion, the decision below is directed, is section 26 of ar-

ticle I of the Constitution of California. It may be

found in the. official edition at California Statutes,

1965, vol. 1, p. A-15. It is given here completely, as

petitioners omit a part of it.

“Neither the State nor any subdivision or agency

thereof shall deny, limit: or abridge, directly or in-

directly, the right of any person, who is willing or

desires to sell, lease or rent any part or all of his

‘real property, to decline to sell, lease or rent such

‘ property to: stich person or persons as he, in his

absolute discretion, chooses.

Sa ee ed sh SN ar

‘Person’ includes individuals, partnerships, cor-

porations and.other legal entities and their agents

“or representatives but does not include’the State or

any subdivision thereof with respect to the sale,

lease or rental of property owned by it. :

~ ‘Real property’ consists of any interest in real

property of any kind or quality, present or future,

irrespective of how obtained or financed, which is

used, designed, constructed, zoned or otherwise de-

voted to or limited for residential purposes whether

as a single family dwelling or as a dwelling for two

or more persons or fantilies living together or in-

dependently of each other.

“This Article shall not apply to the obtaining

of property by eminent domain pursuant to Article

| I, Sections 14 and 14% of this Constitution, nor

to the renting-or providing of any “accommodations |

for lodging purposes by a hotel, motel or other sim-

ilar public Place engaged in —— — to

- transient guests.

“Tf any part or provision of this Article, or the

application thereof to any person or circumstance, --

is held invalid, the remainder of the Article, in-

cluding the application of stich part or provision

to other persons or circumstances, shall not be af-. -

fected thereby and-shall continue in full force and

effect. To this end the provisions of this: Article °

are severable.”

o¢

i ae ‘

-_ =

,Restatement of Questions Involved. . e

1. Does a state constitutional provision, that makes

it a secured and absolute right for an owner of ,resi-

dential property. to refuse to sell, lease or rent the prop-

erty because of the proposed acquirer’s race, color or re-.

ligion, so authorize, approve or encourage racial -dis-

crimination as to involve: the State in the owners’ racial-

ly discriminatory refusal, and thereby render the pro-

vision obnoxious to the Equal Protection Clause of the

Constitution of the United States ?

2. Is Such state constitutional provision invalid

under the Supremacy Clause, because it is inconsistent

with the federal Civil Rights Acts guaranteeing to all

persons the same right to make contracts and to pur-

white citizens ? +. % # os

- chase, hold and lease real property as As enjoyed by

3. Thess. the State vali the Due Process Clause of ‘

the Fourteenth Amendment when it effectively disen-

ables itself and all its agencies, subdivisions and agents

from rendering, and denies, any relief or remedy for

irreparable suffered by those who, solely because they -

are Negroes, are refused an equal opportunity to ac-

_ quire, rent of lease residential property ?

4. Does the State deny equal protection of the laws

when, through the coercive processes of its courts, it en-

forces an eviction of a negro tenant from residential

accommodations rented to him at will, the sole ground

of thé eviction being the tenant’s race?

LITLE LOD FRET THI ‘

RO Le te

_—

-\ Statement of the Case.

Petitioners “Statement of. the Cases” [Br., pp. 5-9]

is not complete. More of, the proceedings below is

“needed to show how and why the question here involved

arose. More, too, is needed of the facts concerning

- racial discrimination and de facto residential .segrega-—

tion in California, as well as of the facts relating to the

circumstances in which the state constitutional provi- _

sion here involved -was adopted ard in which it will

. operate.* That more follows.

’The State. Supreme Court, in order to ascertain the “im-

mediate objective” of section 267 and to place it in “its his-

torical context and ‘the cgnditions existing prior to its enacment,”

noticed and considered the relevant facts. [R. 17-19.] In Cali-

fornia, at the time the instant causes were pending in the State

court, historical and legislative facts of this sort, and facts of

» common knowledge, were (they still are, but under different

statutory provisions, see Cal. Evidence Code, secs. 451, 452),

properly the subjects of judicial notice. |Cal. Code of Civil Pro-

cedure (1965), sec. 1878, subds. 3, 8; Ventura County. Harbor

District v. Board of Supervisors, 211 Cal. 271, 277, 295 Pac. 6,

8; People v. Torres, 56 Cal. 2d 864, 866, 366 P. 2d 823, 825,

17 Cal. Rptr.' 496, 497; Wilson v. Loew's Inc., 142 .Cal. App.

2d 183, 188, 298 P. 2d 152, 156, and cases there cited in note 3.]

This Court has the same power of judicial notice as the court

. whose judgment is under review. [Hanley v. Donoghue, 116 U.S.

1, 6; Chicago and Alton R.R. v. Wiggins Ferry Co., 119..

U.S. 615, 622-623; Adams v. Saenger, 303 U.S. 59, 63; Renaud

v. Abbott, 116 U.S. 277, 285.] The Califorrtia Supreme Court’s

power of judicial notice was not dependent, and, therefore,

neither is this Court’s, upon exercise of the power in the lower

court. It may be exercised by the reviewing court even though

the lower court failed or refused to do so. [Rogers.v. Cady,

104 Cal. 288, 290, 38 Pac. 81; People v. Stralla, 14 Cal. 2d 617,

620, 96: P. 2d 941, 942; People v. Tossetti, 107 Cal. App. 7,

12, 289 Pac. 881, 883.]

The power should be exercised in the instant case, for the

noticed facts serve to define the discriminatory purpose that —

section 26 was avowedly designed to serve; and, also, to show

clearly the intended ard natural operation and effect of the sec-

tion in the conditions in which it does and wil] gperate in Cali-

fornia. [See, pp. 11-18, infra.]

1. Mulkey v.. Reitman.* Lincoln W. Mulkey and

- Dorothy J. Mulkey are Negroes, husband and wife,

and citizens of the United States. [R. 2] They are

two of the respondents here. The petitioner Neil

Reitman is the owner of an apartment building in Santa

Ana, California (in the County of Orange, of which

county Mr. and Mrs. Mulkey are residents)-; the other

petitioners are the managers of that building; and all -

petitioners are in the business of renting apartments to

members of the-public. [R. 2-3.] In May, 1963, one or .

more apartments itt that building were uno¢cupied and

were being offered by petitioners to the public for rent.

[R. 3.] Mr. and Mrs. Mulkey, at that time, offered to

rent one of the apartments, but the petitioners refused

to rent any apartment to them, solely because they were

Negroes. [R. 3.] As a consequence of that refusal, Mr.

and Mrs. Mulkey were unable to rent a suitable place

to live, suffered “humility [sic]” (but meaning “hu-

miliation”), disappointment and pain and suffering. to

their general damage in the sum of $50,000.00. [R. 3.]

Petitioners will continue to refuse to rent to Mr. and

Mrs. Mulkey or to other Negroes, solely because of their

race, unless enjoined by the court. The discrimination

practiced by petitioners is also practiced by other. real

-estate brokers and home and apartment landlords and —

owners in Orange County, and throughout California.

{R. 4.] Mr. and Mrs. Mulkey, therefore, brought the’

action, as a clsss action in behalfof all persons dis-

criminated against because of their race or color. [R.

‘The case was decided in the trial court on the pleadings.

[R. 10-13.] The facts. summarized are those alleged in the

Mulkeys’.compiaint. and which, for purposes of the proceedings

below, had to be and were taken as true. [Davis v, Santa Ana,

108 Cal. App. 2d 669, 685, 239 P. 2d 656, 665.]

2, 4.] They prayed for monetary damages and an in-

junction against pie discrimination alleged. [R. 4-5.]

This action > heaeae on May 29, 1963 [R. 2], -

which was before section 26 was adopted. The Unruh

Civil Rights Act [Cal. Civil Code, secs.°51, 52 (Cal.

Stats., 1959, c. 1866, p. 4424; Cal. Stats. 1961, ¢. 1187,

p. 2920) ] was in full force and effect at that time. The

Mulkey action was designed, i.a., to recover the general

and statutery damages provided for' in that Act.

[R. 3, 4-5.] Upon adoption of section 26, petitioners

moved in the trial court. for, what was ina legal effect,

a judgment on the pleadings, on the sole ground that

section 26 “rendered Civil ‘Code Sections 51 and 52

upon which this action is based’ null and void.” [R. 10.]

The motion was granted on that ground and a judg-

ment that the Mulkeys take nothing was entered. [R.

So far as material here, the Unruh Civil Rights Act pro-

vided (and still provides) :

§51. “All persons within the jurisdiction of this State’

are free and equal, and no matter what their race, €olor,

religion, ancestry or national origin are entitled to the full

and equal accommodations, advantages, facilities, privileges,

or services in all business establishments of every kmd what-.

soever.”

§52. “Whoever denies . . . or whoever makes any. dis-

crimiriation, distinction or restriction on account of color,

race, religion, an¢estry, or national origin contrary to the

-. provisions of Section 51 . ... is liable . . . for the actual

damages and two hundred fifty dollars ($250. 00) in ad-

dition thereto, suffered by any persan denied the rights pro-

vided in section 51.

* The Act has beeri construed by the State courts to apply to

ns in the business of selling real estate, whether as owner

, or broker [Lee v. O’Hara, 57 Cal. 2d 476, 478, 370 P. 2d 321,

322, 20 Cal. Rptr. 617, 618: Burks v. Poppy Const. Co.. af a

2d 463, 468-469, 370 P. 2d 313, 315-316, 20 Cal. R

611-612; Don Wilson Builders v. Superior Court, 220 ci. pp.

_ 2d 77, 82, 33 Cal. Rptr. 621, 624; Crowell v. Isaacs, 235 Cal.

“App. 2d 755; 757, 45 Cal. Rptr. 566, 567] ; and to persons rent-

ing units or apartments in a multiple-unit. dwelling. [Swann v..

Burkett, 209 Cal. App. 2d 685, 26 Cal. Rptr. 286. }

12-13.] On-appeal by Mr. and Mrs. Mulkey to the State

- Supreme Court [R. 13-14] the judgment was reversed

[R. 14, 31], on the ground that section 26 was an un-

constitutional infringement of the Fourteenth Amend-

ment. [R. 17, 31, 81, 83-84.]

2. Prendergast v. Snyder. Respondent Wilfred J.

Prendergast, a Negro, and Carola Eva Prendergast, a

Caucasian; are husband and wife. .[R. 51.] Petitioner

. Clarence Snyder is the owner of a seven-unit apartment

building in Los Angeles, which he rents to tenants. [R.

51.] On July 13, 1964, he rented it, through a realtor,

to Mrs. Prendergast. The realtor was then advised that

Mrs. Prendergast’s husband was working in San Fran-

cisco, but would join her to live in the rented apartment.

-as soon as he was transferred to Los Angeles. [R. 51-

' 52.] Neither petitioner Snyder nor the realtor knew at

that time that the husband, respondent Wilfred J. Pren-

dergast, was a Negro. In October, 1964, Mr. Prender-

gast stayed with his wife at the apartment, at which

time the realtor saw he was a Negro. The ‘following

month he moved into the apartment and there lived

with his wife. [R. 52.] Within the month, petitioner

served a notice to quit upon the Prendergasts. The sole

reason for that notice was that respondent Wilfred J.

Prerdergast is a Negro. [R. 53.] It was not sooner

served because of the requirements of the Unruh Civil

Rights Act. [See fn. 5, p. 8, supra]. It was, however,

served promptly after section 26 was adopted: [R. 53-

54.] Unless restrained, petitioner Snyder will cause the .

Prendergasts to be evicted, for which they have no ade- .

quate remedy at law; and-he will also refuse to rent to

other Negroes. [R. 54.] _ |

— SLike Mulkey, this case also, was decided on the pleadings.

[R. hoes } The facts as stated ate those alleged. ‘

aon:

The Prendergasts sued to. restrain the . threatened

eviction. [R. 51, 54-55.] Petitioner Snyder . cross-

complained against the Prendergasts to have it. adjudi- -

cated and declared that the Prendergast tenancy had :

been lawfully terminated and that he has the right/to

have a court recognize and enforce that termination,

even if his sole reason for it and for his seeking judi-

cialrecognition of it is the race of Mr. Prendergast.

[R. 63, 65-66.] He alleged in the cross-complaint that

it was his intention to live in his apartment building,

but he did not desire so. to do so long as the Prender-

— are in it; and. that he does. not desire to rent any

he apartments to Negroes. [R. 64, 65.]

Petitioner Snyder moved in the trial court for a sunt-

mary judgment dismissing the Prendergasts’ complaint

and ranting him the relief prayed for in the cross-

complaint. [R. 58-59.] The motion was supported ‘by

averment of facts designed to show the economic loss’

he would suffér if he could not keep Negro tenants out |

of his building. [R. 59-62, 67-69] The real, though

implicit, ground of the. motion, however, was; in sub-

stance that, by reason of section 26 he had the absolute

right to refuse, on racial grounds, to rent or lease. [R.

59, 65-66, 73.] The trial court ruled that for the court

to grant any relief on the cross-complaint would be to

violate the Fourteenth Amendment. Accordingly, it en-

tered judgment dismissing the cross-complaint. [R. 80.]

Petitioner Snyder appealed from the judgment. The

State Supreme Court affirmed, primarily on the same

’ grounds for which it reversed Mulkel [R. 81, 83-84];

and alternatively, on the ground that judicial enforce-

ment of the racially motivated eviction would be un-

. constitutional. [R. 84.]

—~ aon mre in Pe ey nee ne ee aetna «idl t yo _ a ~

3 \ :

3. Racial Discrimination In California, Racial dis-

crimination in California is not a new story." It has

existed a long time and its roots are deeply embedded

_ in the State’s history and the habits and customs of its

‘ people.* The result has been extensive de facto resi-

7Petitioners seem to equate racial discrimination with private

prejudice or bigotry. [Rx 42.] No doubt such prejudice or

bigotry is a frequent motivation of the discrimination; but it is ©

not the only one. Other motivations stem from economics, social

snobbery, and direct and indirect influences of various govern-

mental policies of action os inaction that. coerce or encourage

the discrimination. The important thing is not the motivation, but

the result or fact of racial discrimination.~When the latter exists

its impact upon those discriminated against and upon society —

as a whole—personal humilitation, deprivation of personal dig-

ey, eS a

sequelae of disease, crime and anti-social attitudes [see, Heart af

Atlanta Motel v. United States, 379° U.S. 241, 252-253, 291-292;

Senate Report No. 872, 88th Cong. 2d Sess., p. 16; Burks v.

Poppy Construction Co., supra, 57 Cal: 2d at 471, 370 P. 2d at

317, 20 Cal. Rptr. at 613; Jackson v. Pasadena: School Dist., 59

.Cal. 2d 876, 880, 881; 382 Ps 2d 878, 880-881, 882; 31 Cal.

_Rptr. 606, 608- 609, 610]—are the same, regardless of the

motive that produced the discrimination. [See, Burton v. Wil- -

mington Parking Authority, 365 U.S. 715, 725.]

8Until 1952, the state constittition required the legislature to

authorize cities and towns to remove Chinese from their limits

or compel them to live iri prescribed areas within* those limits ;

and it prohibited the employment of Chinese by corporations or

on public works. [Cal. Const, (1879) art. XIX, secs. 2, 3; 4.]

Chinese, as well as Negroes ahd Indians, were judicially held to

a be incompetent to testify as witnesses in any case to which a

white was a party. [People v. Hall, 4 Cal. 399.] Other forms of

official discrimination against Chinese led to one of the earliest of

this Court’s decisions to apply the Equal Protection. Clause to

racial discrimination. [Yick Wo v. Hopkins, 11@U.S. 356.]

Segregated schools for Negroes, Indians, Chinese, Japanese

“~ Mongolians were authorized by statutes [Cal. Laws, 1869-70,

838, secs. 53, 56; Kerr's Cal. Political. Code (1920), secs.

1662, 1669, 1670; al. Education Code (1943), secs. 8003,

8004; and see W ysing %. Crookshank, 82 Cal. 588, 23. Pac. 54;

and Ward:v. Flood, 48 Cal. 37, 17 Am. Rep. 405], the las® of

which was not repealed until: 1947, [Cal. Stats. 1947, ¢. 737, p.

1798.] Mexican-Americans have been segregated into separate

(This footnote is continued on the next page) /

‘s

a +

dential segregation of racial minorities, especially Ne-

groes. This result, it is no doubt true, has not been °

caused solely by racial prejudicé, but it has been caused

by racial discrimination. That discrimination is itself

the prodiict of the’interplay of private and governmental -

action. In sum, discrimination (whether motivated or

caused: by. prejudice is immaterial), has been the prev-

alent pattern of conduct by owners, brokers, lender and

builders in California. [U.S. Commission on Civil Rights,

50 States Report, pp. 43-46; U.S. Commission on Civil

. Rights Report (1961), Book 4, Housing, pp. 2-4, 132-138,

144-145,] An important part has been played by active aid

from government, such as, for example, enforcement of

restrictive racial covenants, and compulsion or coercion, as

well as toleration, of or permission to engage in discrirni-

natory practices. [See, fn. 8, p. 11, supra_Also, pp. 33-34,

infra.] From that interplay of private and governmental -

conduct there has restilted a widespread and long-standing

schools f{see, Westminster School District v. Mendez, 9 Cir., -

161 F. 2d 774}, and denied admission to public recreational fa-

cilities. [See, Lopes v. Seccombe, S$.D. Cal., 71 F. Supp. 769.]

Negroes have been. discriminated against in admission to low-rent

public housing [see, Banks v. Housing Authority, 120 Cal. App.

2d 1, 260 P. 2d 668, cert. den., 347 U.S. 974] ; and Japanese have

been prohibited from owning land. [See, Sei Fujii v. California,

38 .Cal. 2d 718, 242 P. 2d 617.]

Race covenants in deeds that restricted occupancy of the prop-

erty to Caucasians were held valid and enforceable [see, ¢.g., Los

Angeles Investment Co. v. Gary, 181 Cal. 680, 682-683, 186

Pac. 596, 597-598], until*1948, when, under the compulsion of

‘. Shelley v. Kraemer, 334 U.S. 1,they were held judicially unen-

forceable. [Cumings v. Hokr, 31 Cal. 2d° 844, 193 P.- 2d

-74@.| An idea of the considerable extent .to which these ic-

tions were used may be gleaned from the fact that in Cumikgs,

31 Cal. 2d at 845-846, 193 P. 2d at 742; seven such California’

decisions are cited; and there are at least three more. [Janss In-

vestment Co. v. Walden, 196 Cal. 753, 239 Pac. 34; Forest Lawn

Memorial Pk. Assn. v. De Jarnette..79 Cal. App. 601, 604, 250

Pac. 581; Burkhardt v. Lofton, 63 Cal. App. 2d 230, 233, 238,

146 P. 2d 720, 721, 724.]

Sait i seat i

community custom of discriminatién,. which, in its turn,

has produced in California extensive de facto segregation

or zoning along racial lines.°

In any community in whi¢h there is a substantial :

non-white population, residential areas are divided into

' white and non-white .zones or districts that are as

sharply defined as though laid out to conform to an.

-.ordinance fixing ‘their boundaries. Few, if any, of the

non-whites live or are able to live in the white zones,

even though they ‘may desire and can afford to live

there. They are forced to live in the district that by

_ discriminatory community custom has become the dis-

trict allotted to them. The facts in this regard are noto- .

rious; they are matters of common knowledge,- as they

are apparent and observable to anyone who passes

through the districts in questior."° They have been

-documented: in detail in a good many studies, official

reports and judicial decisions." Typically descriptive of

°The governmental forces at work that contribute to this com-

munity custorh in California are déscribed by Judge Loren Miller in

“Government's Responsibility for Residential Segregation” pub-

lished in Race and Property (fn. 11, 'p.- 13, infra), pp. - 58,

60-64.

. Such facts are judicially. noticeable in California [Cases

cited, fn: 3, p. 6, supra. ]

The Court, of course, may resort to any source that satisfies

its mind, to inform itself of the facts that it notices judicially.

[Wigmore, Evidence (3d ed.), Vol. 9, sec. 2658a, pp. 537-538.

People v. Mayes, 113 Cal. 618, 626, 45 Pac. 860, 862.] Among

the miany sources from which the Court may inform its ju-:

dicial knowledge of residential segregation in California (to all of

which the court below was referred by one or another of the

parties), are the following:

U.S. Commission on Civil Rights Report (1961), Book No.

4, Housing (1961), pp. 1-4, 132-138, 144-145.

U.S. Commission on Civil Rights, 50 States Report, Cali- |

fornia Advisory Committee (1961), pp. 43-46.

(This footngte is continued on the next page)

‘sili:

the conditions in California, in which, of course, sec-

tion 26 must operate, is’ the following from the Cali-

fornia Advisory Committee to the U. ‘S. Commission

on Civil Rights, reporting in 1961 [U. S/ Commission

on Civil Rights, 50 States Report, pp. 43-46] :

“The State of California has a large and in-

creasing Negro population. These people live mainly "

in segregated patterns in major urban centers of

the State, In most cases, Negro housing areas

are considerably less attractive than housing’ in

Se other areas. ...

“As California’s Negro population increases,

_ pressure builds up in the great urban ghettos, and

slowly but perceptibly the segregated areas enlarge.

families do not -move individually throughout the

community. They move as a group. This is true

in most cases of the relatively high-wage Negro °

professional. group. It is practically ‘universally

true - Negroes in the lower income mass-group.

ce es ee

“This. Negro housing problem is widespread.

Negroes encounter discrimination not only where

houses in subdivisions and in white neighborhoods

Los Angeles County Commission On Human Relations,

Population Housing In Los Angeles — (1963),

pp. 2-4.

U. of Calif. Extension Series On Public Issues, Race

and Property (Diablo Press 1964. Denton ed.), pp. 6-8,

_ 58-76. :

McEntire, Residence and Race (U. of Calif. Press,

1960), pp. 32-67.

Kaplan, Discrimination in California Housing, 50 Cal.

Law Rev. 635, 644.

Jackson v. Pasadena School District, 59 Cal. 2d 876,

878-879, 382 P. 2d 878, 880, 31 Cal. Rptr. 606, 608.

_ The Committee found that, as a general rule, Negro .

sa Ni at hate nlat A enced A cinta ashe lacaes ela dowd or

are concerned but also in regard to trailer parks

and motels. Testimony received by the Committee

indicated that the trailer-park situation is particu-

larly acute and that, especially in the southern part

of the State, few, if, any, trailer parks will ac-

cept Negroes.”

In McEntire, Residence and Race (op. cit., fn. 11, p. 13,

supra), pp. 32-67, there is a chapter describing residen-

tial patterns in twelve large.cities representing the ma-

jor regions of the country, including, at pages 61-66,

maps showing the racial concentrations in San Francisco

and Los Angeles. The upshot of these extensive surveys

of residential conditions is to prove beyond dispute the

existence in California, as in many other places, of

de facto racial zoning.”

- 4. Enactment of Section 26, and Its Purpose. Prior

to 1959 there was no prohibition, direct or indirect, in

California, of racial discrimination in the sale, rental

or leasing.of residential property. There was, however,

a civil rights statute of fairly limited scope. [Cal. Stats. °

1905, c. 413, p. 553; Cal. Civil Code (1923), secs. .51,

52.] It did not cover all persons, but was: limited to

citizens, who, it was declared, were entitled to the full

and equal accommodations, facilities and privileges of

inns, restaurants, theaters and similar places of public

accommodation. In 1959, this statute was: extended to

proscribe discrimination in all business establishments ;

12 ven if racial zoning or segregation is not due primarily

to racial prejudice,-it exists and. in practical operation amounts

to discrimination. Section 26 has the effect, indeed the intended

effect, of enabling the segregation to continue and to spread; and,

as well, to burke governmental efforts to eliminate it or prevent its

future extension, by direct, proscriptive action against pereate:

contributions to the condition. _[See, pp. 15-18, infra.]

and its benefits were made applicable to all persons

within the State’s jurisdiction. [Cal. Stats. 1959, c. 1866, ~

p. 4424. See fn..5, p. 8, supra.| And, also in

. 1959, by the Hawkins Act, racial discrimination in the

sale, rental or leasing of “publicly assisted” housing

was prohibited.” [Cal. Stats. 1959, c. 1681, p. 4074.].

Nonetheless, there was throughout the State a high

degree of de facto residential segregation and district-

ing along racial lines. [See, pp. 11-15, supra.] Public at-

tention on that condition was focused in 1963 by a num-

ber of mass, and sometimes turbulent, protest demon-

strations in and about residential subdivisions whose

owners and developers were or were charged to be dis-

criminating against Negroes. Ultimately, in that year,

the Rumford Fair Housing Act was enacted. [Cal. |

Stats. 1963, c. 1853, p. 383; Cal. Health and Safety

Code, Div. 24, Part 5 (beginning with section 35700). ]

This Act-prohibited discrimination in housing accom- —

modations because of, “race, color, religion, ‘national

origin or ancestry” and declared such discrimination

to be against thé public policy of the State. [Cal. Stats.

1963, c. 1853, pp. 3823, 3824, sec, 2; Cal. Health &

Safety Code, secs. 35700,-35720.] It also set up a com-

prehensive system of enforcing that prohibition. The

system included provisions for investigation and media-

tion of complaints of discrimination, as well as for pre-

vention or compelled cessation of it. [Cal. Stats.

1963, c. 1853, p. 3825; Cal. Health & Safety Code, Div.

' 24, Part 5, Ch. 4, beginning with sec. 35730.],

18The Hawkins Act was superseded and repealed in 1963 by

the Rumford Fair Housing Act. [See, p. 16, mfra.]’

14Only the prohibitory provisions of this comprehensive statute

are printed by petitioners at pages 10-11 of the Appendix to —

their Brief. The procedural provisions, through which the pur-

pose of the statute is to be achieved, are omitted.

on, om

Adoption of the Act. was vigorously ainiact by’ such

real estate and property owners’ .organizatious as the

‘California Real Estate Association, California Commit-

tee for Home Protection, and the California Apartment Fe.

Owners Association [see, Br., Appendix, pp. 3,°5,]. — {

Notwithstanding that a campaign to subject the Act to , &§

a referendum was begun, those opponents of the Act re-

fused to support the referendum. They wanted more |

than’ mere repeal, more than an absence of: legislation

-prohibitory of racial discrimination in the disposition of .

-residential property. What they wanted was an amend- — 7

ment to the state constitution that would affirmatively 2

and absolutely secure the right so to discriminate. So, A

they quickly commenced qualification of an initiative

measure to undo what the legislature had done and to ree

store and secure freedom to discriminate beyond the power

of the State to interfere. The ultimate result was the addi-

tion of sectién 26 to the State constitution. [U, of Calif.

Extension Series On Public ‘Issues, Race.and Property

( Diablo Press. 1964, Denton ed.), pp. 6-8.]

*As is required by California law [Cal. Elections .

Code, Div. 4, chap. 1, article 3 (beginning with section

3555)], submission of the measure to the electorate 7

was*accompanied by of fiGal arguments pro and con, a

copy of which went to every registered voter in the

State.” [See, Br., aan pp. 2-7.] The argument

OE PN ee ee

These “pallot arguments” are, in California, an accepted

aid to ascertainment of legislative intention and ptirpose. [Pco-

ple v. Ottey, 5 Cal. 2d 714, 723-724, 56 P. 2d 193, 197-198;

Beneficial Loan Soc. v. Haight, 215 Cal. 506, 515, 11 P. 2d

, 857, 860, quoting-and approving the opinion in Crooks ‘v. Peo-

ple’s Fin. etc. Co., 111 Cal. App. (Supp.) 769, 775-776, 292

Pac. 1065, 1067; Crees v. Cal. State Board, 213 Cal. Asp. 2, CU

_ 195, 211, 28 Cal. R ptr. 621, 630-631; In re Goddard, 24 — i =

App: 2d 132, 140-141, 74 P. 2d 818, 823- -824.] -

me i

in favor of the méasure laid bare its purpose to permit

and enable the carrying on of the practice of racial

discrimination in the sale, rental and leasing of resi-

dential property. It did so in these words:

“ . . this constitutional amendment will guaran-

tee the right of all home and apartment owners

to.choose buyers and renters of their property as

they wish, without interference by State or local

government. a :

“Most owners of such property lost this right

through the Rumford Act of 1963. It says they

may not refuse to sell or rent their property to

anyone for reasons of race, color, religion, national

origin, or ancestry.

* * * *

“Your ‘Yes’ vote will require the State to remain

neutral: Neither to forbid nor to. force a home or

apartment owner to sell or rent to one particular

person over another.” [Br., Appendix, p. 3]

Section 26 as proposed and adopted dic not 7s

repeal the Rumford Act or any other statutory or con- »

stitutional provision. Whatever repealing effect it may

have had was but the consequence to. be implied from

its positive prohibition, as a part of the State constitu-

tion, of any denial, limitation or abridgement of the

‘right of any person “to decline to sell, lease or rent

[his ] property to such person or persons as he, in his

absolute discretion chooses.”

Sens

——s

asasacnil gg fgg aan neers Sa

| —19—

Summary of the Afgument.

(1) By an amendment to its constitution (section

26), the State of California has provided that neither

it nor any subdivision or agency thereof shall deny,

limit or abridge the right of an owner of residential

property to refuse to sell, lease or rent it to such per-

son as he in his absolute discretion chooses. The’ avowed

purpose of the amendment was to make it possible once

again, as it recently had not been lawfully possible because. -

of prohibitory statutes, but ‘as before, had been. the

long-standing community, custom, to refuse to sell,- lease

‘or rent residential property -to. Negroes and other racial

or. religious minorities. Two actions in the staté“courts

were brought by Negroes against the petitioners here,

who are in the business of renting apartments to the

_ public in buildings they own. One of these actions was

for injunctive relief.and monetary damages on account

of a racially motivated refusal to rent an available

apartment; the other was to enjoin an eviction of a hus-

band and wife from an apartment, because the husband

was a Negro. In these actions, section 26 was invoked

by-the petitioners ih justification of the racial discrimi-

- nation against which the actions were brought.

Section 26, by reason of its inherent and admitted

purpose to authorize or permit racial discrimination and

its natural operation and effect to accomplish that pur-

pose, is obnoxious to the Equal Protection and Due

Process Clauses of the Fourteenth Amendment, and to

the Supremacy Clause, of the Constitution of the

- United States, because it involves the State in the racial

discrimination practiced on respondents and which is

being” ‘and ‘will be practiced on many others similarly ,

"> situated. This involvement of the State is the equivalent

of “state action” and is established by these considera-

~ tions:

First: The State has. made the right to discriminate

on racial grounds in the sale, rental or leasing of resi-

- dential property, a secured and absolute constitutional

right. It, therefore, has done much more than, through

inaction or indifference, merely to permit such discrimi-

nation. It has made a deliberate and purposeful choice

® to.make a constitutional right out of racial discrimina-

‘tion. That is, in necessary and realistic effect, authori-

zation by the State of the ensuing discrimination.

Second: The State, acting formally and officially by

enactment of an amendment to its ‘constitution, has en-

. couraged its people to discriminate against racial minor-

ities. The amendment was enacted for the purpose of

enabling such discrimination to take place. It was ‘en-

acted in the context of a deep-seated! and long-standing

custom and ,habit of its people to discriminate. It as-

sured those who desired to and did discriminate that no

state goyernmental: agency or subdivision could or would

impose any sanctions upon them in respect of the dis-

crimination. Taken together, all this amounts at least

to encouragement. The State may no more encourage

than it may authorize or command racial discrimination.

Third: The State has disenabiled itself and all its

agencies, including, of course, its courts, from acting

directly against racial discrimination, or from render-

ing any relief in respect of a racially motivated re-

fusal to sell, rent ur lease residential property. In that

~way, the State has abdicated all duty or responsibility

not to leave its people remediless against conduct that

irreparably injures them, by depriving them of their

federally sectired constitutional right to befree of racial

discrimination. Such a duty of protection is implicit in

the Fourteenth Amendment, for without it a.State could

nullify a right secured under it by simply clearing out all

statutory or other legal barriers in the way of desired —

private conduct destructive of the right. This duty of

protection is ‘repudiated in California by the operation

and effect of section 26. ‘The State has withdrawn from

the field; it has rendered useless and ineffective the right

of petition to the state courts for relief against the ir-

' reparable injury caused by privately effected racial dis-

crimination. Denial of a’ remedy for irreparable injury

- wrongfully caused, is a denial of due process.

Fourth: Section 26 is not, merely a repeal of the tele.

tofore existing legislation prohibiting racial discrimina-

tion’ in the disposition of residential property. It goes

beyond that simple operation by involving the State in

private racial discrimination, and by creating a state-

constitutionally secured right to discriminate. Moreover;

it-was adopted precisely in order to clear the way for

and enable. that discrimination to flourish. The State

’ thus has sought to do/by indirection, i.e., by the freeing

of private ‘desires and acts, what it cannot constitution- —

_ ally do directly. The indirect route is no more open’ to

- it than the direct,one. The Fourteenth Amendment bars

both. When repeal is the method chosen to go down the

indirect route, it, too, is barred. “~

Fifth: In appropriate and constitutionally permissible

enforcement of the Fourteenth Amendment, .the Con-

gress has guaranteed all persons the same right to make

contracts and to purchase, hold and lease real property

as'is enjoyed by white persons. That right is not limited

in its operation to infringement by. the States, but ap-

plies as well to private conduct destructive or injurious |

| 22

of it. Section 26.in its authorization and encourage-

ment of a limited right of purchase, holding or leasing

on the part of racial minorities, is patently inconsistent.

It, therefore, falls under the Supremacy Clause.

(2) In Snyder, in addition,.to the grounds already

‘ summarized, there is another ground that supports the

judgment. .It is that the relief sought by petitioners

and denied by the court*was judicial enforcement of

racial discrimination, t.e., enforcement of an intended

eviction of a tenant solely because he is a Negro. For

the State so to use the full panoply of its judicial

power in aid of’a racially discriminatory design, is to -

deny to those against whom enforcement is sought the

equal protection of the laws. A statute authorizing or

commanding such evictions would clearly be unconstitu-

tional. The case is no different, merely because the

identical result.is effected through action of the State’s .

judicial rather than its legislative department. Nor is

' the case different because the effect of judicial enforce-

ment of the eviction is not to compel a discriminatory -

decision to be made by one who, but,for the compulsion

of the court’s process, would make a non-discriminatory

*»

decision. The,esult of the enforcement is, nonetheless, -

to impose discrimination upon its unwilling victim,

whose constitutional right it is to be free of racial dis-

crimination at the hands of the State. ‘

constitutional sanction.

fect of this provision—by which, of course, its con-

Fa i th il ligt AB le Rene ala

~~ . Se. ee a eat ee eco we Se i a0 y

—23—-

ARGUMENT.

- The State of California Has Made Racial Discrim-:

ination in the Course of Dealing i in the Sale and

Rental of Residential Property a Right Secured

by the State Constitution. In That Way the

State Has Conferred the Authority of Its High-

est Law Upon the Discrimination; and Has

Acted Unéonstitutionally to Deny Equal Pro-

tection of the Laws to the Victims of It.

' First: The statute here involved adds to.the Con-

stitution of the State of California a provision that pro-

'_ hibits the State and all of its governmental subdivisions

and agencies from regulating or limiting the right

of any owner of residential property to sell; rent or

lease or to refuse to sell, rent or lease the property to

such person as the owner in his absolute discretion

chooses. Manifestly, the right to refuse to sell, rent or -

_lease because of the proposed acquirer’s race or religion

is embraced within the absolute discretion thus given

‘© The natural operation and ef-

stitutionality must be judged [see, Vick Wo v. Hopkins,

supra, 118 U:S. at 373; Near v. Minnesota, 283 U.S. 697,

708-709; Bailey v. Alabama, 219 U.S. 219, 235-236;

Davis v. Schnell, S.D. Ala. -(3-judge court), 81 F.

Supp. 872, 880, affirmed 336 U.S. 933]—is plain to

see. It is, so far as it is possible for a state to’ make it

so, to ermact racial discrimination in the sale, rental and

That was -the construction put upon section 26 by the

State court. [R. 18, 20, 27-29.] Its construction of the State.

legislation is, of course, binding upon this Court. [Cramp v.

Board of Public Instruction (368 U.S. 278, 285, and cases there —

cited. ]

ee 2:

leasing of residential property into an impregnable con-

stitutional right.” The section was in fa&t designed to

- accomplish’ just that legitimation of the practice of

racigl discrimination, and thus to authorize and clear the

way for it. The State’s voters were authoritatively so

told, when the measure was submitted to them. [See,.

pp. 17-18, supra. ]

Section 26, as petitioners insistently argue [Br., 13, °

17-24, 33-37],\is indeed a choice of policy by the .

State. But, it is not the simple choice that petitioners

describe, i.e., only a choice to be neutral in the matter of

,racial discrimination; or to deal with only one’ part of

the problem, or meet it from a gradualistic approach,

enacting or leaving in force such palliative measures as

fall short of prohibiting the practice. It is, rather, a

conscious and intended choice to make racial discrimina-

tion possible and to make it safe to carry it on, by im-

munizing it from any sanctions of the law; and, in that

way, to secure and authorize it. Because, as petitioners

_insist, it is a deliberate ahd official choice of policy by

the State, there is no need in this case to engage in any

protracted search for “state action.” A choice has been

amade by the State, and that choice is the fornial and

official act of the governmental establishment. That is

state action-enough to bring it within the proscriptive.

reach of the Fourteenth Amendment.

TAs a part of article I of the state constitution, entitled “Declara-

tion of Rights,” section 26 finds itself in the company of and on a

parity with such other constitutionally secured rights as freedom of

speech, religion and assembly, and due process of law. [Cal. Const.,

art. I, secs. 4,°9, 10, 13.] - The intention to give the right to dis-

criminate a preferred and secure position could not have béen better

evidence. Of ‘all of the states of the Union, California is the.

only one that has elevated racial discrimination into, a constitu- ~

tional right. an ce ]

2 . sd

‘ .

i lla a tats ei EY END aioe as kA te

: —2— re,

Second: -In the circumstances of community history

and custom, resulting in de facto residential segrega-

tion [see, pp. 11-15, supra], section 26 is an encourage-

ment of resumption and continuation of the’ custom. It

puts behind the discriminatory custom the authority and

prestige of the State. ~ es

The avowed purpose of. section 26 is to permit rever-

sion to this custom of racial discrimination and thus to .

permit resumption of the practice that Rumford had

proscribed. That in <itself is authorization of the prac-

a tice—as is demonstrated by the fact that it is precisely —

the authorization of law.effected by section 26 tliat was.

invoked below by petitioners in legitimation of their ad-

mitted discrimination. [R. 10, 72-73. ]

| The State, of course, may no more authorize than’it

may itself directly engage in racial discrimination. [See

* the cases cited and discussed im fn. 19, p. 26 infra.]

Authorization, no doubt is, qualitatively, something

more than mere inaction; but to find an authorization

ofa given practice, there need not have been'a com-

mand to engage in, or an explicit approval of. the prac-

tice. [See, McCabe v. A. T. & S. F. Ry. Co., 235 U.S.

157, 158, 160, 162; Simkins v. Cone Memorial Hospital,

4 Cir. (en banc), 232 F. 2d 959, 968, cert. den. 376

U.S. 938. Also,’fn. 19, p. 26 infra.] It may be found

in a purposeful choice by the State not to stop, and in

that way to evince its approval of, a practice it has the

power to stop.’®

18The instant case is not one of being free to engage in racial

discrimination because, by reason of the State’s inaction or -

indifference, there has been no prohibition of it. The case is

one of a deliberate choice by the State. expressed in a formal

and authoritative exercise of its legislative’ power, not to pro- -”

hibit the practice, in order that it may be freely engaged in as

and whenever desired. That plainly is more than inaction or in-

difference. [See, pp: 26-27, infra.]._

lilt ee Di no et. eK mee gene ew

~~ 0 OB

Third: Because of section’ 26, racial discrimination in

housing-accommodations in California is now permis-

sible. It is permitted to flourish in the context of. the

deeply embedded community custom to which we have

referred. [See, pp. 11-15, supra.] This governmental

toleration of racial discrimination is the result of

much more than legislative indifference; it is the

result of the fact that the State has purposefully.

chosen, in order that the discrimination may go on, to

pursue a policy of abstaining{ indeed disabling itself,

from prohibition or regulation oft. To make that policy

effective the State has made racial discrimination a con-.

stitutional right. In that context, and for that purpose,

the State’s choice was not merely indifference or neu-

. trality. [Cf., Pet. Br., 13-14, 17-24.] It was authoriza-

tion and approval. To be sure, the State compels no one’

to discriminate; but it enables and deliberately permits,

_ in short, it authorizes those who want to discriminate

to do so. [Cf., Shelley v. Kraemer, 334 U.S.1,19.]) |

Such a deliberate or conscious choice certainly in-

volves the State in the discrimination to at least as great

an extent as government. was involved in the private

activities with which this Court was concerned in Mc-

Cabe v: A.T. & S.F. Ry. Co., supra, 235 U.S. 151, and

Public Utilities Com. v. Pollak, 343 U:S. 451. In each

of these cases an analogous choice was found to in:

volve the government sufficiently to come within the

reach of the Fourteenth and Fifth Amendments, re-

spectively.”

19In McCabe a state statute required separate accgnmoda-

tions for the white and. black races on railway trains, but pro-

vided that nothing’ in the statute should he construed to prevent.

railway companies from hauling sleeping and dining cars to be

(This footnote is continued on the next page)

The short of the matter is that it is not necessary,

in order to invalidate section 26, to rest decision upon

any proposition that State neutrality or inaction [see

Br., 17-18, 33-34, 41] is the equivalent of action under

the Fourteenth Amendment. Nor ‘is it necessary: to

find that section 26 commands or directs ‘racial’ dis-

‘crimination. It is enough,.to involve the State in the

discrimination, when it occurs, that those who discrim-

inate have been left free to do so by the deliberate

and. approving choice of the State. That choice is ac-

tion; and it is certainly the equivalent of an affirma-

tive authorization.

Fourth: Petitioners refer to Marsh v. Alabama, 326

U.S. 501, as a case in which thé reason why the Four-

teenth Amendment was applied to private conduct, was

used exclusively by either white or negro passengers. Thus, .

railways were permitted but not required. to provide sleeping ,and_.

dining cars for whites only. That non-mandatory but merely per-

missive proviso, this Court- safd, made the denial of such ac-

commodations to negroes by the carrier, action taken “under

the authority of a state law...” [235 U.S. at 158, 160-162.]

Section 26 similarly authorizes racial discrimination by property

owners.

In Pollak, the Public Utilities Commission of the District of

Columbia had dismissed an investigation into the practice of a

privately owned streetcar company of ‘broadcasting radio pro-

grams in its cars. The Commission’s order did no more than to

’ refuse to prohibit the practice, because, as it found, public safety,

comfort and convenience were not impaired by it. Nonetheless,

-even though the First and. Fifth Amendments “apply to and re-

strict only the Federal Government and not private persons . . .”

this Court agreed with the reasoning of the Court of Appeals

to the effect that “the action of [the company] in installing -

and operating the radio receivers, coupled with the action of the

. . . Commission in dismissing its own-investigation of the prac-

tice, sufficiently involved the Federal Government in responsi-

bility for the radio programs to make the’ First and Fifth

Amendments . . . applicable to the radio service . . .” [343 U.S.

at 461-462.] There is in the case at bar, a closely similar inter-

play between the. petitioners’ discriminatory conduct and the

State’s official toleration of it. '

—2Runs

that the private entity concerned was a “community °

[company town] authorised by the State to perform

exactly the same kind of functions as a publicly owned

municipality . . .”’[Br., 30, Italics ours.}] There was not.

in Marsh, any state statute.or other governmental pro-

_-mulgation that directed, approved or enabled the owner

of the company town to operate jit as a municipality.

The State, however, had put the full force of its crim-

inal law (in the form ofa trespass statute) behind

the suppression of speech and religion with which that

case was concerned [326 U.S. at 505, 508-509]; and it

had permitted (though not expressly or by any of-

ficial action) the company to. operate its property in

effect as though it were a town. [326 U.S. at 502,

508-509, 510-511]. This Court’s opinion in Marsh’

was written’ by Mr. Justice Black. In his dissent in

Bell v. Maryland, 378 U.S. 226, 318, 326-327, he dis-

agreed with the view that application of a state tres-

pass statute to private conduct, which was an expression

of protest of segregated service in a restaurant, brought

~ the conduct within purview of the: Fourteenth Amend-

ment. wae

We are, therefore, entitled to reject petitioners’ as-

sertion that the state “authorization” they find in.

Marsh came from the trespass statute there involved

[Br., 45]; instead, we suggest, that the “authorization”

in that case must have come from the state’s tolera-

tion of the operation of the company town.. The case

at bar calls, a fortiori, for a finding of state author- -

ization, since the private conduct Here in issue is not

only tolerated by the State, but is conduct which the

State, acting officially and affirmatively: hag made into

a constitutional right.

~ "oe

> HL

The State Acts Within the Meaning of the Four-

. teenth Amendment When, as Here, It Becomes

Significantly Involved in Private Action That

Impairs Fourteenth Amendment Rights.

First: “State action” within the meanjng of the Four-

teenth. Amendment need not be a formal exercise of

governmental power or an official act of the govern-

mental establishment.*° Private acts of a sort that if

officially or formally done by the State would un-

questionably come within the proscription of that

Amendment, still come within it if the State can be

fairly said to be involved in or responsible for them.

[See, United States v. Guest, 383 U.S.- 745, 755-756;

Frankfurter, @ concurring, Terry v. Adams, si US.

461, 473. |

It is, no doubt, “a commonplace that rights under

the Equal Protection Clause itself arise only where

there has been involvement of the State or of one acting

under the color of its authority. . .” Such involve-

ment, however, need not “be either exclusive or direct :

; and it has been found by this Court “even:

though the participation of the State was peripheral,

20This proposition is certainly implicit in the decisions that

have effectively settled the rule that even a wholly unauthorized

or unlawful act of: some agent of the state may be “state action.”

[See, e.g., Screws v. United States, 325 U.S. 91, 110-112;

Monroe v. Pape, 365 U.S. 167, 171-172; Williams v. United

States, 341 U.S. 97, 99-101; United States. v. Price, 383 U.S.

787, 792-793. |

Be that as’ it may, section 26 is a formal and: official act of

the State. of California. It ‘is authoritative legislation, ‘enacted

in one of the two ways by which legislation in that State may be

‘adopted. [Cal. C onst., art. IV, sec. 1.] It is, therefote, “state

_ action” in the classic sense. So, the question here is not whether

the State has acted, for it has; but whether. its action snentgee

federally-sezured constitutional rights.

ee a .

. .

Linn dathit edb tiina SED

atin Miasart an Oy

or its action was only one of several co-operative forces ©

leading to the constitutional violation. . :..’" [United

States v.. Guest, 383 U.S. 745, 755-756. See also,

United States v. Price, supra, 383 U.S. at 794 (fn. 7).]:

So, it is settled that governmental approval of or in-

volvement in private conduct ‘need not reach the level-

‘ of compulsion to clothe what is otherWise private dis;

crimination, With ‘state action.’” [Simkins wv. Cone

Memorial Hospital, supra, 323 F. 2d at 968.]

There is no closed cetegory of acts or conduct that

will so involve the State in private racial discrimina-

tion as to make the Fourteenth Amendment applicable.

[Burton v. Wilmington Parking. Authority, 365 USS.

715, 722, 725-726.] The test is State responsibility. '

What that means, the de¢ided cases show, is some con-

tribution by the State to. the carrying on of the dis-

crimination, in the fornt of enablement or encourage-

1Petitioners, elaborate -at length upon this “‘commonplace”

that the Fourteenth Amendment acts against the States, not

against individuals [Br., 24-28]; in doing so they also quote

from this part of Guest. [Br., 25.] But, they omit enough

of it to de-emphasize and hide the fact that this Court there

recognized, as it has on. many other. occasions [see, pp. 30-31, -

infra], that the State by involving itself in private conduct will

bring the conduct within the reach of the Fourteenth Amend-

ment. So, too, they ignore Guest so far as it declares that the ©

participation ‘ that constitutes such involvement may be only

“peripheral” and need amount to no more than “one of several

co-operative forces leading to the constitutional violation.” (Italics

ours. ) . o

® There is not inherent in the instant case, therefore, any re-

quest or need “to adopt such expansive jurisdiction” as that

which petitioners profess to fear. [See, Br., 26-27.] The limited.

jurisdiction that has heretofore sufficed to apply the Fourteenth

Amendment to private conduct in which the State is involved,

suffices here to enable this Court to determine whether the court

below correctly found such involvement and if it did, whether the

conduct to which that involvement.related was of a sort: barred

‘to the States by the Fourteenth Amendment.

Ae RB Mp il Tat

‘

rm ee ee

. . —

oa Get ee! noes Sees pe Rae a he lenge oe Dyna ante ger lete stenting ites ninety

ment or approval of it.“ It is, we submit, not gain-

sayable that the State may not act to encourage racial

discrimination by those over whose conduct it has the

power of control and regulation. [See, e.g., Lombard .

v. Louisiana, supra, 373 U.S. 267; Anderson v. Mar-

tin, supra, 375 U.S. 399. ]

*2Among the many kinds of conduct that have been held to

amount to State involvement are: Exhortations by city officers

not to protest racial segregation and which thereby encouraged

private persistence in segregated operation of a cafe [Lombard

v. Louisiana, 373 U.S: 267, 269-270] ; the inciting or encouraging

effect, in view of known private attitudes, of requiring the race |

of candidates to be printed on election ballots [Anderson v.

- Martin, 375 U.S. 399]; the interplay of private and state acts

bringing about subjection of negroes to private reprisal as the

consequence of State-compelled disclosire of their membership

in a locally unpopular organization [N.4.4.C.P. v. Alabama,

~ 375 U.S. 449, 463]; leasing premises upon which private dis-

crimination takes place, though the discrimination is not com-

manded or suggested by the State [Muir v. Louisville Park

Theatrical-Assn., 347 U.S..971, reversing 6 Cir., 202 F. 2d 275; -

. Burton v. Wilmington Parking Authority, supra, 365 U.S. 715;

- [Robinson v. F

Derrington v. Plummer, 5 Cir., 240 F. 2d 922, 925-926]; en-

couraging use of racially discriminatory deed covenants, by al-

lov ‘ng damages for breach [Barrows v. Jackson, 346 U.S. 249,

2°-+, ; administering a discriminatory private trust [Pennsylvania~

v. Board of Directors, 353 U.S. 230]; substituting private . per-

sons for a city as trustee of a private trust in. order, to permit

discriminatory operation of the trust property [Evans v. Newton, —

supra, 382 U.S. 296] ; financial assistance to businesses or estab-

lishments in which discrimination is carried on [Simkins v. Cone

Memorial Hospital, supra, 323 F.2d .at 965-968]; permitting

private regulation of primary elections, without any govern--

mental control or suggestion, but for the implicit purpose of

. excluding negroes [Terry v. Adams, supra, 345 U.S. at 465-466,

approving Baskin v. Brown,upra, 174 F. 2d 391, and Rice v.

Elmore, supra, 165 F. 2d 387]; permitting or tolerating dis-

crimination under authority, but not the compulsion of state law

[McCabe v. Atchison, etc. Ry. Co. 235 U.S. 151, 161-162; and

cf., Public Utilities Com. v. Pollak; supra, 343 U.S. 451, and

Marsh v. Alabama, 326 U.S. 501]; permitting de facto school

* > segregation caused by: neighborhood privaté residential patterns

[Jackson v. Pasadena School Dist., supra, 59 Cal. 2d+876, 31 Cal. °

Rptr. 606, 382 P. 2d 878; Branche v. Board of Education, -

E.D.N.Y. 204 F. Supp. 150] ; encouraging discrimination by bur-

dening integrated o ration of places of public accommodation.

lorida , 380 U.S. 153, 156-157.]

ee eee ny ee a ee ee a. on

Contrary to petitioners’ assertions [Br., 30-31, 33,

38-39, 45-47], the cases iti whigh state involvement —

has been found, have not been only those that, ‘to use

petitioners’ language, ‘‘deal with the rights of a citi-

-zen vis-q-vis his government’. . .” [Br., 31.] There

are quite a few cases that are not so confined. The:

right, of a person not to be segregated out of a private

cafe, or private recreational facility, is ‘not a right

“vis-a-vis his government” in petitioners’ meaning; but;

if the private enterprise is conducted if or on property

that is leased. from the State, and even though the

* segregation is not coerced or affirmatively ‘atithorized

or encouraged -by the State, it may well be that the

State is involved in the discrimination. In-that event,

the Fourteenth Amendment applies. [See, ¢.g., Burton

2, Wilmington Parking Authority, supra, 365 Ks.

715: Muir. v. Louisville Park Theatrical Assn.,. supra,

347 U.S. 971; Derrington v. Plummer, supra, 240 F.

2d 922.] Similarly, the right not to have to listen to |

a radio~ program while riding on a streetcar, is not

‘one that is ordinarily.one “vis-a-vis” the government,

but government can be involved in it without going

to the length of compelling the program to be broad-

cast. [Public Utilities .Com. v. Pollak, supra, 343 U.S.

451.] Too, the right to be free from private reprisal

because of membership, in an‘ unpopular organization,

is not a right “vis-a-vis” the government : but, if-a

member suffers such reprisal by reason of gqvernmen- - ~

tally compelled disclosure of his membership, there *is

such an interplay between the private and povernmen-

tal acts as’ to bring the case within the. Fourteenth

Amendment. [N.A.A.C.P. v. Alabama, supra, 375

U.S. 469.] .

| _

Even if petitioners’ argument were sound, its condi-

tion of private activity in the nature of a governmental

function is met in the case at bar. [See, also, pp. 53-54,

infra.] Zoning -or districting of residential areas in a

community is just as much of a governmental func-

_tion.as* conducting an election or operating a -park,

a swimming pool or golf course. And, as Mr. Justice

Black has said in explaining the grounds of the hold-.

ing in-Shelley v. Kraemer, supra, 334 U.S. 1, a pri-

vate deed restriction confining ownership or occupancy

of land to whites, “was in reality the equivalent of

and had-ihe effect af state and municipal zoning laws.

.” [Bell v. Maryland, — 378 U.S. at 328-329,

Black, J., diss.] ;

So is it with the private conduct here vclied It

tends: to. bring about, in California it has brought

about, residential zoning on racial lines as effectively

as though commanded by law. [See, pp. 11-15, supra.)

It, too, is, as the private conduct in Shelley was, “in

reality the equivalent of arid [has] the effect of state

and municipal zoning laws.” [See. also, St. Antoine,

Color Blindness But Not Myopia, 59° Mich.. Law Rev.,

993, 999-1001. 1013-1014. L

Perhaps there are factors other than racial prejudice

or bigotry that bring about the discrimination which

contributes to the creation and continuation of de facto

- residential segregation. [Br.; 42-43.] It may be, -of

course, the result of putting a higher value on eco-

nomics than on morality or tolerance : .or the result of any

“one or combination of many causes. [See, pp--12-13, 15

(fn. 12). supra.] But, whatéver the cause of the discrim- .

ination. it strely cannot be merelv a coincidence that

there are racial ghettos, not only in California, but in

erevern

every urban area of the land. A court may fairly. in-

dulge the inference that the concentration of Negroes

into a few districts, and their absence from those that

are white is a condition that was brought about pri- .

marily, if not entirely, by the refusal of the great pre-

ponderance of white property owners to sell or lease

to Negroes any residential property in a white sec-_

tion. That is discrimination in fact, whatever may be

its subjective motivation. And surely it cannot be de-

nied that cessation of a wide-spread practice of re--

fusal would go a long way in the direction of prevent-

ing the spread of existing or the creation of new de facto |

ségregation.

No doubt, zoning is “a ‘accomplished by legis- .

lation or regulation that is coercive. The manner in

which elections shall. be conducted is also usually the

subject of mandatory legislation, as are also the regula-'

tions pursuant to which government will operate parks

and other public facilities whose operation it under-

takes. But these functions may also be carried on by

private persons; and when the question of state in-

volvement depends on the nature of the function, the

test is equivalency of result. Certainly, the private

condutt of elections, of- the sort that was interdicted

in the “white primary” cases [see, pp. 50-53, infra],

was not the exact duplicate of their conduct by gov-

ernment, especially in the circumstance that the -rules

and: restrictions of; the private variety were voluntary,

instead .of being coercive, as equivalent governmental

regulations usually are. In general, and particularly in

result, however, the two were equivalents; and so, when

coercive or mandatory governmental regulation of the

private activity was repealed to permit a discriminatory,

. ©

Pag nr rere remem momma +

_ have.

ans

voluntary’ private operation, etiam became signifi-

cantly involved. ity 2

Second: The State Supreme Court concluded that

the State of California was significantly irivolved m

_the discrimination complained of at bar. [R. 20-29.]

This~ conclusion is firmly grounded ‘nthe facts of

the purpose for which section 26 was adopted and of

its natural operation and effect to encourave racial dis- |

crimination by owners of residential properties. The con-

clusion is reinforced by the familiarity with local customs,

' conditions and practices of the State’s people and bus?

nesses that the State Supreme Court must be deemed to

(1) Enablement nia encouragement of the practice :

~ of racial discrimination in housing property was the

- object for the consummation of which section 26 was.

_,adopted. [See, pp. 17-18, supra.] The effects of section

26 go farther than the comparatively few instances

of discrimination shown in the instant record. Section

26 is nota transient or temporary stop-gap. It is a

part of California’s organic law, designed to set a.

lasting standard. As Such, it serves to preserve and ex-

tend the existing dé facto segregation of the. races.

It strengthens and puts the seal of constitutional ap-

_ proval upon the established and readily expandable com-

munity custom of residential segregation. [See, Don-

nici, The Decline and Fall of California’s Proposition 14,

1 Univ. of San Francisco L.R. 12, 20-22, 47-48. ]

Official legislative zoning along racial lines would be

undoubtedly unconstitutional. [Buchanan v. Warley, 245

U.S. 60; Harmon v. Tyler, 273 U.S. 668 (reversing

per curiam, Tyler v. Harmon, 158 La. 439, 104 So.

200, 160 La. 943, 107 So. 704); Birmingham v. Monk,

Saat nce lac RSE tach nat die sda a Me he wat Nees pew ale tt iS Sas sa i koe

5 Cir., 185 F. 2d 859, 862, cert. den. 341 U.S. 940;

Richmond v. Deans, 4 Cir., 3% F. 2d 712, affirmed

281 U.S. 704.] It-should be just as unconstitutional

when, even though only de facto, the result is attained.

with the sympathetic encouragement of the State. The

enceuragement to racial segregation that section 26 .

gives is “one of the several cooperative forces” [United

States v. Guest, supra, 383-.U.S. at 755-756] that

have led and will continue to lead to such segregation.

[See, pp. 25-26, supra.]* .

(2) The natural operation and effect of section 26

is to encourage racial discrimination in residential hous-_

‘ing. It was: adopted against the background’ of a long

‘and persistent history of such @iscrimination in the

State; a background of an existing and embedded

‘community custom of discrimination that had devel-

oped with much help. from government. [See, pp. 11-15,

supra.| The desire and -will of-a substantial number of

people to discriminate was obviously puissant and ready

to emerge as action, though held in check, at the time of

the section’s enactment, by recent proscriptive legislation

and a growing judicial*tendency to proscribe the dis-

crimination, . even without express statutory warrant.

[See, pp. 15-16, supra. Also fn. 28, p. 47, infra.] Section

26 did much more than remove this check upon that desire

or custom. It made action in furtherance of the desire im-

mune from the law’s sanction, existing or future; and it

gave the actors official assurance that there would and

. could be no redress against them for racially discrimina-

tory acts: -

This was not mere neutrality, for it operated to the

benefit and in aid of those whose known attitudes

+ made it likely, indeed vittually certain, that they would ©

act in only one way—to discriminate. It is one thing

‘erence and choice of the actor. ‘It is quite - another

to assure those known to favor and to want to engage

tory shouts of the town officials in Lombard (supra,

> didate’s race in Anderson (supra, 375 U.S. 399). The

* short of the matter is that sectiofi 26 encourages racial

tablished and long-standing community custom, puts

~ violators of. it in situations involving protest of pri-

to do nothing, one way or the other, thus leaving in-

dividual conduct to the unforced or uninfluenced pref-

in a specific form of conduct, that they may do so

without fear or let. The one may be neutrality or only

indifference to the result. The other is an encourag

ment. ce .

: Surely, there. is as much encouragement of. racial -

discrimination in section 26 as there was in the horta-

373 U.S. 267), or the wu dorned statement of a can-

discrimination, because it lets down the bars’ against

the practice, makes exercise of it a secured and in-

violable constitutional right and, in the context of es-

the State’s prestige and authority in the scales against

any prohibition or regulation of the custom.

_ Third: It will bear some emphasis that this is

not a case in which it is contended: that the Fourteenth

Amendment, of ‘itself, forbids a State to enforce a

general, non-discriminatory criminal statute against

vate racial discrimination. [Cf., Black, J., dissenting,

in Bell v. Maryland, 378 U.S. 226. 318.] Here, the

Fourteenth Amendment is invoked against the State’s

involvement in private racial discrimination—an involve-

ment that stems from an enactment that is not non-

discriminatory, but one that-was designed and enacted _

in contemplation of racial. discrimination, and purpose-

sth G

Taal BD ek a a we 8S ew .

. —38—

fully intended to operate as an enablement. and con-.

.Stitutional validation of it. More nearly apposite to_

| that kind of a situation are the cases like those al-

ready cited [pp. 29-32, supra], in which some encourage-

‘ment of or impetus toward racial discrimination was

given by state legislation, administrative regulation, or

other official approval. [see, also, e.g., Robinson. v.

Florida, supra, 378 U.S. at 155-157; Peterson v. Green-

ville, 373 U.S. 244, 247-248; Black, J., dissenting, Bell

v. Maryland, supra, 378 U.S. at 326-328; White, 2

concurring, Evans v. Newton, 382 U.S. 296, 305.]

Fourth: The question here is not, as petitioners.

would have it, how or to wat extent or in what

way the State should. meet the problem of racial dis-

crimination. [See, ¢.g., Br., 33-37.] The question is

whether the Fourteenth’ Amendment prohibits-a . State

from involving itself in and on the side of such dis-

crimination. The answer to that question has been put

beyond doubt by this Court. [see, ¢.g., the cases ‘cited,

fns. 22, 26, p. 31, supra,.and p. 44, infra.] It may be that

it is permissible for the State to remain inert or inactively |"

neutral in the face of discrimination [but see, pp. 40-47,

infra]. It is certain, however, that if the State does act,

its action cannot be in favor of discrimination. When it .-

comes to racial discrimination, a State’s action can only

be against it. | ia

Section. 26 is undeniably state action. [See, fn. 20,

. p. 29, supra]. More than than, it is affirmative action.

on the side of discrimination, not simply an innocuous

declaration of neutrality. [See, pp. 23-24, 26; supra.) -

_ There is therefore, no room here for any deference to a

legislative judgment on debatable issues of fact. and

—39—

policy. [See, Br., 28-37.] The supreme policy of the land

in respect of racial discrimination has been established by

an authority that no one State and no number of its

voters, however large, may repudiate.

Fifth: Petitioners badly overstate the record when

they say that the State Supreme Court fixed State

involvement or responsibility. “solely because in adopt-

ing Section 26 the people of California had ‘nullified’

previously enacted legislation prohibiting such conduct

. .’; and that it was “this sequence of legislative ac-

tivity alone that the court below ultimately relied upon

_...” [Br., 37.] Even if that were a correct epitome of

the Court’s discussion and conclusion on the subject

of involvement or responsibility, it would be immate-

rial. This Court is not confined to the grounds of de-

cision relied upon by the lower court. A_ successful

party below may sustain its judgment on any ground

that finds support in the record. [Oklahoma v, United

States Civil Serv. Co., 330 U.S. 127, 134 (fn. 3).]

In point of fact; however, state involvement or re-

. sponsibility was found by the State Supreme Court for

reasons quite different from the purported reason sug-

gested by petitioners. For instance, section 26 was found

to constitute state involvement because, 1.@., it pro-

vided for “a purported constitutional right to private-

ly discriminate . . .” [R. 20]; the aid of the State’s

legislation was invoked to consummate and validate

racial discrimination. [R. 22-23]; and, the racial dis-

crimination was accomplished with the culpable permis-

sion of the State, which had abdicated its traditional

governmental functions for the obvious -purpose of

condoning the private discrimination. [R. 23-24.] °

(at hilt ea

.—40—

III |

Since the Fourteenth Amendment’s Prohibition

‘Upon: the States Imports a Duty on Their Part

to Protect Those Within Their Jurisdiction _

Against Abridgement or Impairment: of the

Rights Secured by the Amendment, Repudiation

by a State of Its Duty of Protection Is Action

Within the Amendment’s Reach.

The Fourteenth Amendment 7 ‘the itt to .

be free of racial discrimination . . ” [Terry v. Adams,

supra, 345 U.S. at 468.] No deuibé, that grant, so far

as the direct operation of the Amendment is concerned,

_is a limitation upon state rather than private action;

but its “aims” [see, Katzenbach v. Morgan, supra,

384 U.S. at 657], are more comprehensive. It imports .

a policy to eliminate from the communal life of the na-

tion the divisive consequences of racial discrimination;

and to secure to the individual a right that may be fully

enjoyed and made to accomplish the purpose of freeing

him from-subjection to the injurious personal results of

racial discrimination. That much is certainly implicit

in the nature of the right; it has been. made evident by ©

this Court’s determination, in United States v. Guest,

supra, 383 U.S. at 761-762, 778-779, 781-783, ‘that

pursuant to the power given Congress to enforce the

right, admittedly a prohibition on only the States, it

is permissible to proscribe private action that is de-

structive of it. .[See, also, pp. 55-60, infra.] ‘

The State, of coursé, may not itself infringe the

right to bé free of racial discrimination. [Cases cited,

fn. 26, p. 44, infra.|] It involves no stretching-of the

Amendment’s language or its fair import, therefore, to

conclude that, to prevent denigration of the right it se-

-+41—

cures, the State must protect its holder in the full en-

joyment of it, and not leave him remediless against con-

duct invasive of it. [Truax v. Corrigan, 257 U.S. 312,

329-330. See, Buchanan v. Warley, supra, 245 U.S. at

77-78; Marbury v. Madison, 1 Cranch 137, -163.] A

good*mzny decisions may be brought together in sup-

port of the proposition just stated. The necessary ra-

tionale cf the decisions is that there is a duty upon the

_ State to protect the persons within its jurisdiction

against conduct it has the power to proscribe, which

conduct, even though it is not commanded by the State,

will have the practical effect of abridging or denying .

full enjoyment of the constitutionally secured right.”

2a... The very highest duty of the States,” this Court has

said, is “to protect all persons within their boundaries in the en-

joyment of these ‘unalieaable rights with which they were en-

dowed by their Creator’ . . . The equality of the: rights of

citizens is a principle of republicanism. Every republican govern- —

ment is in duty bound to protect all its citizens in the enjoyment

of this principle, if within its power .,: .” [United States v.

Cruikshank, 92 U.S. 542; 553, 555.] Mr. Justice Bradley, the

author of the prevailing opinion in the Civil Rights Cases, 109

U.S. 3, in a letter to Circuit Judge Woods, said of the Four-

teenth Arnendment that “. . denying the equal protection of the

laws includes the omission ‘to protect as well as the omission to

pass laws for protectiori . . .” [Quoted by Mr. Justice Gold- :

berg concurring, in Bell v. Maryland, 378 US. 226, 309-311.]

That letter had its effect, Judge Woods used its exact language

in United States v. Hall; 26 Fed. Cas. 79, 81 (No. 15,282),

in holding it was a violation of the Civil’ Rights Act of 1870

to prevent and hinder exercise of the constitutionally protected

rights of speech and assembly.

The failure of State officers to protect one in their custotly

from the assault of a mob of private persons, it has been held, is -

a denial of Fourteenth Amendment rights. [Lynch v. United ;

_ States, 5 Cir., 189 F. 2d 476, 479-480, cert. den.,.342 U.S. 831;

Catlette v. United States, 4 Cir, 132 F. 2d 902, 907. ] In

United States v. Given, 25 Fed. Cas. 1324 (No. 15 210), it was

held to ke a violation of the Civil Rights Act of 1870 for a tax

collector to fail to collect a tax, for the nonpayment of which

the right to vote was lost; the Court saying, that a “practical

denial and abridgement” of the constitutional right was effected

(This footnote is continued on the next page)

CS ee a nae - -

A duty of protection is a necessary corollary of, the

prohibition directed at the states. Unless there is such

a duty upon the State’s part, the Amendment is sapped

of its vitality and its prohibitions are eroded into little

more than a precatory admonition. If there is no such

- duty, means of. violating the Amendment without .

~ consequent federal sanctions are put in the State’s hands

[cf., Cooper v. Aaron, 358 U.S. 1, 18; Ex parte Vir-

gihia, 100 U.S. 339, 347]; then, to-evade the Amend-

ment, the State need only clear the way for private

violation of the right and merely look the other way

when it occurs.** |

by the State’s “indifference, refusal to pass such laws as har-

monize with and aid in making [the right] available and secure

to all citizens . . .”

A duty to remedy racial segregation in public schools, not-

withstanding it was caused by residential segregation which was

itself the result of private action, rather than of governmental

doing, was found in Branche v. Board of Education, E.D.N.Y.,

204 F. Supp. 150, 153. [To the same effect is Jackson v. Pasa-

dena School District, supra, 59 Cal. 2d 876, 382 P. 2d 878, 31

Cal. Rptr. 606.] And in Tate v. Department of Conservation,

E.D.Va., 133 F. Supp. 53, 61, affirmed 4 Cir., 231 F. 2d 615,

it was said that when a State leased its property for operation

of a park by private operators, the State had “to see that the

park was operated by the lessee without discrimination.”

That is the way some States sought to deny Negroes the

right to vote in party primaries—i.e., by repealing all laws that

stood in the way of treating the primary as the internal activity

of a private club, and standing “‘neutrally” by while that private

activity was kept closed to Negroes. That sophisticated attempt

at escaping the command of the Fourteenth Amendment against

denial of equal protection of the laws did not pass judicial

_ scrutiny. [Baskin v. Brown, 4 Gir., 174 F. 2d 391; Rice v. El-.

more, 4 Cir., 165 F. 2d 387, cert. den. 333 U.S. 875..And, see,

‘ Terry v. Adams, supra, 345 U.S. at 465-466.] See, also the

comments of Senator Pool concerning the scope of the Fifteenth

- Amendment, that are quoted in the appendix to this Court’s

opinion in United States v. Price, supra, 383 U.S. at 809-811,

and in which he anticipated State attempts at nullification of the

Amendment by the expedient of omitting to protect the rights

secured by it.

Lh)

. All this does not mean that a State is required to

enact legislation proscriptive of racial discrimination or

that is otherwise preservative of the constitutional right.

[See, Br., 36-37.] What it does mean is that if, by

private conduct over which the State has the power of

control, the right is infringed, the State must provide

a remedy for it. If it does not, its choice not to protect

the right involves it in the infringing conduct suf-

ficiently to bring the Fourteenth Amendment into

operation. The conduct, being then the equivalent of di-

rect action by the State, may. be the subject of such re- ©

lief as will serve to make the infringed right fully ef-

fective. More than that, the expression of the State’s

choice, which in the instant case is, of course, section

26, is invalid, because it offends the command of the

Amendment.*> Ray eee

Section 26 puts California in the position of repudiat-

ing any duty to provide such a remedy; and thereby it

abridges the constitutional’ rights of respondents and

others like them who, solely because of race, are being

and have been subjected to discriminatory action in

which the State is involved. The section disenables the

State from: providing any remedy for the injury in-

flicted upon a person by such discriminatory action. In -

consequence of this repudiation, it subjects persons to

the imposition of irreparable injury upon them, “and

25A court of equity, state. or federal; would have ample

power to frame an appropriate decree. Cogent examples are at

hand in the reapportionment and school-segregation cases. There

it has not been felt to be enough simply to strike down the of-

fending statute or regulation. The courts, in order to make the

protected right effective, may also delineate the shape and order

the adoption by the State of a constitutional substitute. [See, e.g.,

Brown v. Board of Education, 349 U.S. 294; Reynolds v. Sims,

377 U.S. 533, 585; Silver v. Brown, 63 Cal. 2d 270, 278, 281-

280, 405 P.°2d 132, 138, 140, 46 Cal. Rptr. 308, 314, 316.]

f f .

: @

leaves them remediless in the premises. Through sec-

tion 26 the State has withdrawn. itself completely

from the field of: preventing racial discrimination in the

sale, leasing’ or rental of housing property.

No search for “state action” need be made to bring

this repudiation of a constitutionally imposed duty with-

in reach of the Fourteenth Amendment. It is the product

of the State’s formal and official legislative action. Its

result is a denial to racial groups of the law’s pro-

. tection against discrimination directed at them on ac-

count of their race. The unacceptability of race as a

basis of: classification under the Equal Protection .

Clause is now beyond possible dispute.”*

Absent an applicable ‘remedial * statute, reparation

for irreparable injury inflicted by private racial dis-—

crimination would normally be sought in the State’s

courts: Denialor refusal’ by the State of an effective

remedy for irreparable injury inflicted, even though

thorough private means, by invasion of a constitutional

right, is a denial of due process of law, contrary to the

Fourteenth Amendment [Truax v. Corrigan, 257 U.S.:

312, 329-330. Cf., Jackson v. Pasadena School Dis-

—os

The Fourteenth endment guarantees “the right to acquire.

~ and possess property of every kind . . . to dispose of ‘it and tp

live upon one’s own land, all “without discrimination’ on ac-

* count of color, race, religion = Buchanan v. Warley, supra,

245 U.S. at 62-63, 64.] The first Mr. Justice Harlan’s reference

to the color-blindness of the Constitution [Plessy v. Ferguson,

163 U.S. 537,] has been carried into the modern decisions so

firmly as to put racial discrimination beyond the legal pale in

virtually ‘every conceivable situation. [See, e.g., Shelley v.

Kraemer, 334 U.S. 1; Barrows v. Jackson, 346 U.S. 49:

Brown v. Board of Education, 347 U.S. 483: Oyama v. Cali-

fornia, 332 U.S. 633, 639-640; Burton v. Wilmington Parking

-Authorit 4 supra, 365 U.S. 715; Terry v. Adams, supra, 345

U.S. 461; Anderson v. Martin, supra, "375 U.S. 399; Evans v.

Newton, 382 U.S. 296; Pennsylvania v. Board of Directors,

353 U.S. 230.]

"access or petition to the State courts.in that regard by

— & me ~> _ onthe tee Se Se bem ‘ am

wove

trict, supra, 59 Ca}? 2d 876, 382 P. 2d 878, 31 Cal. Rptr.

606.] “The very esdfince of civil liberty,” said Mr. Chief

Justice Marshall, “certainly consists in the right of every~

individual to claim the protection of the law whenever he

receives an injury. One of the first dutié&s of ‘govern-

ment is to afford that protection... .” [Marbury v.

Madison, supra, 1 Cranch at 163.] The right of access ;

to the courts, there to claim that protection,» is, of

course, a right guaranteed by the Due Process Clause

of the Fourteenth Amendment. [Truax v. Corrigan,

supra, 257 U.S. at 329-330; Brinkerhoff etc. Co. v.

Hill, 281 U.S:.673, 677-679.] It is, indeed, a form of

the right to petition for a redréss of grievances, se-

cured by the First and incorporated into the Fourteenth :

Amendment. [Brotherhood.of R. Trainmen v. Virginia, i

_ 429-430. Cf., Thomas v. Collins, 323 U.S. 516, 531;

Eastern R. R. Conference v. Noerr Motor Freight,

365 U.S. 127, 136, 138.] hee

This right is abridged by section 26, for it denies ft

any remedy whatever for injury caused by racial dis-

crimination in housing, and it forestalls any effective

: POT ay I Panes

prohibiting in-advance any limitation upon the property

owner’s absolute discretion to refuse, for reasons of

race, to sell, lease or rent.?" »

2?That prohibition is more than a mere legislative definition

of what is or is not under State law an actionable wrong. It is

the denial of any remedy in the State courts for an injurious

invasion of the federally secured constitutional right to be,. as

was said in Terry v. Adams, supra, 345 U.S. at 468, “free of

racial discrimination.” It is this practical abridgement of a fed-

eral right which distinguishes the case, in respect of the right.

to ‘petition the courts, from the case of a legislative definition,

as a matter of local law, of the wrongs that may be redressed

(This footnote is continued on the next page)

he he se ee te 8

\ , eva ~<a

This forestalling effect operates in two ways. The

first of these is that it prevents recognition in the

State court of a cause of action under the Fourteenth

Amendment for injurious conduct in which the State is

sufficiently involved to make the Amendment applica-

ble. It is not enough to defeat such a cause of: action

that the State has no remedial statute. The Fourteenth

- Amendment binds the State courts fully as much as it~

does any other department of government. [Shelley v.

Kraemer, supra, 334 U.S. at 14-18.] The courts could

not: constitutionally refuse recognition of a cause of ac-

‘tion properly made out under the Amendment. Section

26 compels refusal of such recognition, and so offends

against the Amendment: =~ 7

The second of the forestalling effects is that section

26 prevents the State courts from working out as a

matter of the State’s common or decisional law,.a rem-

edy for injurious racial discrimination. Without section

@ 26, it was open to the State courts to work out a cause

@0f_action for injurious racial discrimination, proceed-

ing “on principles of private justice, moral fitness and

‘public convenience, which when applied to a new sub-

ject, make common law without a precedent’ .~. .”

[Willes, J., in Millar'v. Taylor, 4 Burr. 2302,.2312, 98

Eng. Rep. 201. Cf., Douglas, J., concurring in Lombard v.

Louisiana; supra, 373 U.S. at 275-277.] Indeed, - at

the time section 26 was ‘adopted the State Supreme

Court was only a short step away from recognizing a

in the state courts.-In the latter case, the legislation is ad-

dressed to intererests of purely State provenance. [Compare

South Carolina v. Katzenbach, 383 U.S. 301, 325, quoting.

Gormillion v.. Lightfoot, 364 U.S. 339, 341, to the effect that

exercise of a State’s reserved powers is not insulated from:

Federal review when the “state power is used as an instrument -

for circumventing a federally protected right.”

cause of action for privately caused injurious racial .

discrimination.” "

Section 26 has. rendered nugatory any chance the re-.

spondents may have-had, by appropriate petition to the

State courts, to bring about recognition of such a cause

of action.* Truax v. Corrigan, supra, 257 U.S. 312,

is in point in the present connection. There it was held

to be a denial of due process for a State to deny the

remedy of injunction against private conduct that in-

vaded another’s: constitutional right of liberty and

property. “. . . To give operation to a statute,” this

Court said, “whereby serious losses inflicted by such

unlawful means- [libelous statements] are in effect

made remediless is, we think, to disregard fundamental

rights of liberty and property, and to deprive the per-

son suffering the loss of due process of law.” At bar,

the irreparable injury that ensues upon the subjection

to racial discrimination need not be labored. It is a fact

alleged_and, for purposes of the litigation, admitted in

the two cases that are here. [R. 4, 54; see, pp. 7-8,

supra.]| The persons suffering those losses are made

remediless by section 26: In that way, the State. has

acted to deny respondents due prgcess of law.

8See, James v. Marinship Corp., 25 Cal. 2d 721, 155 P. 2d

329, and Williams v. International Brotherhood, 27 Cal. 2d 586,

165 P. 2d 903, recognizing a right to relief in respect of raciall

motivated exclusion from a labor union. Thé reasoning by which

that result was achieved is just as applicable to a racially .moti-

vated. refusal to sell or rent residential property. Substitute

“home” for the references “job” in the opinions and the ap-

plicability of the reasoning will become clearly apparent.

See, also, Jackson v. Pasadena City School District, supra;

59 Cal. 2d 876, 382 P. 2d 878, 31 Cal. Rptr. 606, in which, notwith-

‘standing the absence of an applicable statute, relief was given in

respect of de facto school segregation or by de facto resi- -

dential segregation.

2°Tt may bear repeating that ‘this is * not merely an in-

stance of a legislative determination not to recognize as action-.

(This footnote is continued on the next page)

(pl eit nan ete nO omen aes Nene a as ee Pee ree ee eee _ + ae

Repeal of Existing Legislation sicidtee of Racial

Discrimination, for the Purpose of Clearing the

Way for Resumption and Continuation of the

\ Discriminatory Practices, Is Itself an Uncon-

stitutional Denial of Equal Protection of the

Laws to -Those — Affected. by the

Practices. |

‘It is the persistent contention of petitioners. [Br.,

23-24, 28, 37] that Section 26 does nothing more dras-

tic than to repeal, by implication, California policy to

- prohibit racial discfimination in the sale and rental of

housing accommodations—the policy embodied in the

Rumford and Unruh Acts. [See, pp. 17-18, supra.]

That is an oversimplification of the natural operation

and effect, as. well as of the purpose, of Section 26.

[See, pp. 17-27, supra.] Even if it is not, the consti-

tutionality of the section is not saved by treating it as

only a repealing act. In an appropriate context, repeal

of an existing policy may be unconstitutional. Such a

context exists when repeal is the means of effectuating

the State’s deliberate choice to enable a result, constitu-

tionally barred to the State, to be reached indirectly by

private action and to clear the way for such action by

doing away with prohibitions that serve to prevent pri-

vate invasion of constitutional rights,.and by formally

severing any apparent connection of the State with the

. invaders. In other words, the State does not succeed in

evading constitutional restraints by purposefully clear-

able, given conduct that is wholly within the regulatory control

of the State. It is a denial of a remedy for injurious impair-

ment of a federally secured right. That is what distinguishes it

from cases—e.g.; Silver v. Silver, 280 U.S. 117, 122—holding it

within a State’s competency to abolish rights recognized by the

common law. [See, note 27, P. 45, supra.]

ing the way for accomplishment, through private rather

than official action, of the unconstitutional objective of.

denying equality of treatment to racial minorities. Evans

v. vane, 382 U.S. 296, and the so-called “white: pri-

mary” cases [see fn. 24, P. 42, supra] fully coma

First: In Evans, the state court seemingly did no

more than to accept the resignation of a city, as trustee

of a trust of land to be used as a park for white

women and children, and to appoint private persons in

the City’s stead as trustees. Yet, that action by. the

court was held to be unconstitutional state action within

the meaning of the Fourteenth Amendment. What made

it. so, was the discriminatory purpose that underlay it

—the purpose to clear the way for what the City could _

not itself directly participate in, a segregated operation |

of the park. Had it been thought, it was said in the

_majority opinion of this Court, that even the private

trustees could not lawfully operate the park on a segre-

gated basis, “the resignation would not have been ap-

proved and private trustees appointed . . .” [382 U.S.

_at 302; and see, also White, J., concurring, 382 U.S. at

303.] From that fact, the inference of discriminatory

purpose was drawn. The state’s involvement in the pur-

pose was fatal to its action.”

The parties, and the United States .as amicus curiae,

briefed the case as one in which the State action involved was

* infected with unconstitutionality because of the discriminatory .

purpose that motivated it. That was the thrust, of the statement

of the question involved, as stated in the petition for certiorari. In its

epitome of the case, the United States characterized it as one in

which the State “has agted to transfer [the park] to private

hands in order to perpetuate segregation. . .” as a consequence

of which “the State bears substantial responsibility for the racial

discrimination now enforced by the trustees, albeit they are

(This footnote is continued on the next page)

‘—-50—.-

Whatever doubt there may have been about the ex-

istence of the purpose in Evans [see Black, J. dis-

senting, 382 U.S. at 313-314], there can be‘none at bar;

for here the legislative purpose to permit restoration

and continuation of private discrimination is docu-

mented beyond dispute by the official explanations of

the statutory purpose of section 26, which its pro-

ponents vouchsafed to the electorate, as well as by

- the events that brought about its submission and adop-

-tion, and by its-natural operation and effect. [See, pp.

15-18, supra.] The factual premise upon which the ma-

jority in Evans acted exists in the case at bar. The pur-

pose to clear the way for private discrimination by enact-

ment of section 26 has been made very clear. [See, pp. 17-

18, supra.] Here, as there, the State cannot evade respon-

sibility for bringing about that which it desired and

intended to bring about and which could not have been

lawfully brought about without:the State’s timély and

effective intervention.

Second: The white primary cases illustrate the tech-

nique that this Court in Evans found to be unavailing

to dissociate the state from -racial discrimination it

purposefully permits. These cases show that even repeal

may be_unconstitutional action; if its purpose is to aid:

or encourage or enable private persons to do that which

the Fourteenth Amendment denies to the State acting

Carolina effort to disenfranchise negroes—a story that is

told in Rice v. Elmore, supra, 165 F. 2d 287, and Baskin v.

nominally a private board . . .” [Brief for United States, p. 26

(italics ours)]. The respondents summed up their case with —

the comment that it is “not the proper business of any public

authority to act affirmatively to clear the way for discrimina-

tion...” [Respondents’ Reply Brief, p.1.] — -

enh | m

Brown, supra, 174 F. 2d 391—decisions to which this

Court gave its approval ir in Terry v. Adams, 345 U.S. 461,

465-466.

South Carolina’s method was a simple one. After

Smith v. Allwright; 321 U.S. 649, made it seem likely

that the State’s legislatively designed primary system

was open to the constitutional flaw this Court had ex-

posed in the Texas system, South Carolina repealed

“every trace of statutory or constitutional control of the

Democratic primaries . . .” [Terry v. Adams, supra,

345 U.S. at 465-466.| The purpose of repeal, of course,

was to bring about exclusion of Negroes from the primary

by private action, leaving no apparent connection between

that action and the State, by.way of delegation or grant of |

authority, direction or control. So far as the State was

concerned, it had simply repealed its policy of regulating

and controlling primaries, and had assumed a neutral

stance. It was, however,. the readily inferable purpose of

this device to make it possible for the Democratic Party,

as a private organization and by its voluntary and un-

controlled choice, to effect the exclusion that the State

as such could not. That purpose brought the ensuing

private action within the proscriptive reach of - the

Fourteenth Amendment, as the following quotation

_ from — v. Brown, supra, 174 F. 2d at 393, shows:

. The devices adopted showed plainly the un-

ssailbaaitaiail purpose for which they were de-

signed; but, even if they had appeared to be -in-

nocenf, they should be enjoined if their. purpose or

effect is to discriminate against voters, on account

ofrace...” |

pee Oe ee

—

~ The Texas experience similarly shows that purpose-

ful fepeal may be. unconstitutional action. In that

state, primaries were legislatively regulated. The regula- .

tory statute excluded negroes from participating in

Democratic primaries. This Court held the statute un-

constitutional. [Nixon v. Herndon, 273 U.S. 536.] The -

statute was then repealed and oné enacted by which

control of voting qualifications was given over to the

party Executive Committee, ostensibly a private or-

ganization. That effort, too, was nullified by this Court.

[Nixon v. Condon, 286 U.S. 73.] |

The next move then, was an effort to accomplish the

exculsory purpose ‘entirely by private action; and so,

the State Convention of the Democratic Party, acting —

without any authority, delegation or-grant from the

State, defined the Party membership as consisting of

all qualified ‘white voters. It was this apparently pri-

vate action, in which the State had no part, that this

Court, in Smith v. Allwright, supra, 321 U.S. 649, in-

- validated on the ground that the constitutional right to

vote could not be nullified “by casting [the State’s]:’

electoral process in a form which permits a private or-

ganization to practice racial discrimination in the elec-

tion...” [321 U.S.-at 664.]

Third: These cases are not merely-an ad hoc ex-.

pedient to assure Negroes of equal voting rights. Im-

plicit in them is .a viable principle of constitutional

law, capable and deserving of general application in the

field of racial discrimination. This principle is that the

State unconstitutionally involves itself in private racial

discrimination when it designedly withdraws from the

field in order to permit private accomplishment of the

onl e:-ates ol tthe shee Raitt lees AM ta Bhp tid 0 hg naar teca el Abana ails wi band ges ne

—53—

discrimination in which it cannot itself directly par-

ticipate. ;

The factual context in which the instant case arises,

calls for application of this principle. The voters were of-

ficially told, as a reason why they.should adopt section 26,

that it would réstore the status quo ante Rumford Act.

Then, the property owners had.the right, taken’ away

by Rumford, to “refuse to sell or rent their property to

anyone for reasons of race, color, religion, national origin

or ancestry.” [see, pp. 17-18 supra.] This was not just

repeal; ‘not just a change of policy from anti-racial dis-

crimination to one of neutrality. It was a purposeful

choice to restore and give free scope to the established

community custom of racial discrimination. In that view

_ of the matter, California’s essay at repeal is just as

vulnerable on constitutional grounds as were the similarly

motivated efforts af South Carolina and’ Texas in the

electoral field or Georgia’s in the operation of its park..

Fotrth: To be sure, the holding of a political election -

is a governmental function in which all have a con-

_ stitutional right to participate upon equal terms. And,

a State-operated park is a public facility to use of which,

Pa as against the State, all have an equal right. [Br., 30-

33.] These facts do not differentiate the cited cases

from the one at bar. Indeed, they underscore the ap-

plicability to our facts of the principle upon which the

decisions are grounded; for they show that constitu-

tional rights will not be permitted to be nullified by pri-

- vate action, when the State has had some fair share of

responsibility for bringing about or permitting the nulli-

fication.

People, no doubt, have a constitutional right to equal-

ity of voting and of access to public facilities. They also

s : ° =

: *

dil aS AD eg AA ae tne no ~ woe \ Cece ee bet Rage saan ee ot li - J dinbhdie te thew

: —54+—

have a constitutional right tg be free of racial discrim- .

nation generally; and in particular, to be free of it‘in .

. ‘the acquisition,, ownership ‘and enjoyment of property.

- [Cases cited, pp. 40, 44 (fn. 26), supra.] So do théy have

a constitutional right not to be segregated‘into racial liv-

ing zones or districts [cases cited, pp. 36-37, supra] or

schools [Brown v. Board of Education, supra, ~, U. S.

483. ] a: |

These rights are as much entitled to vindication and

protection as those involved in the. primary cases or in

Evans. Zoning or districting of a community is as much

a governmental function as regulation of a primary elec-

tion or operation of a: park. [See, “pp. 33- 3% supra. |

If the latter may not constitutionally be left in private

hands for accomplishment of a discriminatory pur-

pose, neither may the former. In either case, the pug=

pose of leaving the matter to. private discretion and the

effect of what is done, is to nullify or impair the: right.

In either case, the overriding restraints of the Four-

teenth Amendment may not be so easily or cynically:

loosened. .

It isa superficial analysis of the cases to dif ferentiate

_ Evans and the white primary decisions on the ground that

they involved the private exercise of governmental func-

tions. That analysis ignores the factual context in which

the discrimination occurred and the reason why the

fact that in the cited cases there was no actual ‘or of- .

ficial delegation of power to the private persons in-

volved, but only a-clearing of the way to a voluntary

_assumption and discriminatory exercise by those per-.

sons of the, governmental function, with the State

standing by as a seemingly indifferent neutral. It.

ignores the fact that residential zoning is also a govern-

mental ‘function. It fails, too, to extract from the de |

cisions—from their rationale, facts and result reache¢— —

any generative principle to which they were a response.

V ;

The Civil Rights Acts, -Constitutionally Enacted to —

- Enforce the. Fourteenth Amendment, Prohibit

- Racial Discrimination by Private Persons in

_ Respect of the Acquisition, Neen te En-

joyment of Property. Section 26, Being Incon-

sistent With These Federal Statutes, Is In-

validated by the Supremacy Clause. ,

1. Even Though Private, the Discriminatory Conduct Here.

Involved Is Barred by the Civil Rights Acts.

First: Decisions of this. Court at last term have

settled the power of Congress, as an appropriate means

of enforcing the Fourteenth Amendment, to deal with

private conduct that, even: without state involvement,

has the effect of abridging or impairing rights .se-.

cured by the constitution of the United States. .[See,

> United States v. Guest, supra, 383-U.S. at 761-

762, 780-784; United States v. Price, supra, 383

U.S. at 805, 809-813; Katzenbach v. Morgan, supra,

384 U.S. at. 648-651." If, therefore, the Con-

81As a consequence of these decisions, application of the Civil

Rights Acts -is no longer limited, by fears of unconstitutionality,

’ to acts in which the State is involved or which are done under

color of law. So, too, these cases.make it clear that the con-

gressional power under section 5 of the Amendment extends to

all rights secured or grantéd.by the Federal constitution, not just

to those arising from exercise of the substantive powers of the

Federal government. . . .

In these respects, the doubt created by this Court’s division in’:

United States v. Williams, 341°U.S. 70, has been resolved, and

the constrictive grip of The Civil Rights Cases, 109 U.S. 3, 11-

12, 25, has been loosened, as at least six justices of this Court

have now agreed. [See, United States v. Price, supra, 383 U.S.

at 797-801, 805-806; and United States v. Guest, supra, 383

(This footnote is continued on the next page), ,

—56—

gress has enacted legislation proscripgtive of -racial dis-- -

J property, it is clear that under the Supremacy C lause>-

[U.S. Const., art. VI, cl.-2] inconsistent or conflicting:

~. state legislation must giye way. [Katsenbach v, Mor-

gan, supra, 384 U.S. at 646-647; Testa v. Katt, 330

‘U.S. 386, 391; Buchanan v. Warley, supra, 245 U.S.

~ at 74.] Congress has enacted such legislation—the Civil

Rights Acts of 1866 oe which, in’ relevant part

exist today. [42 U.S.C.A., sets. 1981, 1982. And see,

pp. 57-61, infra.]

Second: Prohibition of private racial discrimination

in respect of the acquisition and enjoyment of property

is an appropriate means of enforcing section 1 of

the Fourtees*: Amendment, notwithstanding the sec-

tion’s prohibitivns operate directly oniy upoy the States.

[United States v. Guest, supra, 383 U.S. at 701-762,

783-784; Katsenbach -v. Morgan, supra, 384 U.S. at

, 649-653.] The Amendment “granted the right to be

free of racial discrimination . . .” [Terry v. Addams,

supra, 345 U.S. at 468.] Certainly, it “secured” the

right. which is enough to justify appropriate: enforce-

ment legislation. [See. United States v. Guest, supra,

383 U.S. at 778:779.] That treatment of the right, as

we have said, imports a policy to rid the nation of they

, divisive and other injurious consequences of such dis-

. crimination. [See, p. 40, supra.] So far as concerns

“the victim of racial discrimination, the Amendment cer-

“U.S. at 761-762, 781-784. ] The%ame may be said of other cases

ante-dating Price and Guest, and in which, therefore, there may

be, found dialecfical support for the argument that Congress is

limited to legislating in respect of conduct in which the State-is

involved. [See, e.g., Hurd v. Hodge, 334 U.S. 24, 31-33; United

States v. Williams, supra, 341 U.S. at 77-78; United States v.

Cruikshank, supra, 92 U.S. at 554.] They, too, have been sapped

of vital force in this respect by the cases decided at last term.

oy ove Wee etsy

tainly aims at securing to hima right that will ania

’ if not indeed fully, shield him from the personally harm-

- ° ately extend to the broad aims or objects of the Amend-

ful and humiliating’ effects that ensue upon being sub-

jected to racial discrimination. The effects may be, they

have been, produced by private discrimination. The’ so-

cially undesirable evils that ensue are the saine, whether st

the conduct be that of the State or the. voluntary. act of

private individuals. a f., Burton v. Wilmington Park-

ing Authority, naek 365 U.S: at 724-725.]. In either

event, full achevement of an. important. objective of the

Amendment yan Legislation seeking to re-

move or prevent the obstruction is an appropriate

means ‘of. achieving the object the Amendment has in .

view. .

The power of the Congress to enact such legislation

is the power, granted by section 5 of the Fourteenth

Amendment, “to enforce, by ‘appropriate legislation, the

provisions of this article.”. Enforcement niay appropri-

ment as well as to its strict letter. That is shown by

Guest, supra, 383 U.S. 745, in which the provisions “of

this article” with which this Court was concerned, se-

cured rights only against state action. Nonetheless, at .- —

least six justices of the Court recognized that legisla-

tion against conduct that did not includé stfite action

was an appropriate means of enforcing the provisions

- “of this article.” .[ United, States v. Guest»supra, 383

U.S. at 761-762, 774777, 781-784.} The same must be

true of the “right to o be free of racial discrimination’—

a right that: surely if on a_parity with the right to travel, -

which was the one specifically involved in Guest..

Third: Under the Congressional legislation, all peo-

ple are guaranteed the same right to make contracts and

—58—

e to purchase, hold and lease real property ds is enjoyed

by white citizens. [42 U.S.C.A. secs. 1981, 1982.] This

guarantee imports, indeed for its effectiveness it must

mean, that all conduct destructive of it is banned.’ -

The history of this legislation, the conditions that -

brought jit into being, the goal it was- designed to

reach, give ample assurance of the cgngressional pur-

pose to reach private conduct that had the effect of :im-

pairing or frustraging constitutional rights:

~ . The original Civil Rights Acts were, of course, part

of the reconstruction of the South at.the end of the

- Civil War. The oppressive actions to which the newly

freed Negro was subjected in the staies of the former -

Confederacy, and to the cugbing of which the Acts were/—

directed, were not.alone, or even primarily, the acts of

the-states. “It was perfectly well known that the great -

danger to equal enjoyment by citizens of the rights, as

citizens, was to be. apprehended not altogether from

unfriendly State legislatures, but from’ the hostile

action..of corfiorations and individuals in the States

...” [United States v. Guest, supra, 383 U.S. at 783

(fn.-8), quoting Harlan, J., dissenting in The Civil .

Rights Cases, supra, 199 U.S. ‘at 54.] And, so, ty was

these, private acts that sought to continue the Negroes’

subjugation—acts such as cconomic reprisals and the

terrorism of the night-riding Klu Klux Klan—to

which the Civil Rights legislation was directed. [see, -

United States v. Price, supra, 383 U.S. at 800-802;.

United States v. Mosley, supra, 238 U.S. at 387-388 ;

88Cf, the analogous construction given by this Court to-other

rts of the Civil War statutes, e.g, 18 U.S.C.A. secs. 241, 242

in United States. v.. Price, supra, 383 U.S. at 800-801; :* Vir-

ainia v. Rives,.100 US, 313, 318. See, also, United States v.

Guest, supra, 383 U.S. at 777 (Brennan, J., concurri wv dis-

senting) ; United, States v. Mosley, 238 U.S. 383, 386- .

‘\ .

a — | x

United States v. Williams, supra, 34% U.S. at 73, 75-

77.) These constituted ‘the evil. at which the Congress

was aiming. These wer ¢ the reasons why the successive

Civil Rights Acts were ‘not dimited merely to official” ,

conduct or conduct carried on under color of law, but:

embraced all conduct having the feared destructive ef-"

fect upon constitutional freedoms.™

Che language of the congressional enactment brooks

of no limitation to conduct cup ied on under authority

_or color of law; other provisions deal with that. [e.g.,

42 ULS.C.A.,, see. 1983; i8 U.S.C. Ag See. 242. | There

is no qualification of the full sweep of the words used.

Those words are broad enough to include, as they were

intended to include, private conduct. It is inconceivable, |

_ the depredations of the Ku Klux Klan sta then up- »

§At first, the “Black Codes” of th Souther States imposed—

official discrimination upon the supposedly freed. Negro, But

the Reconstruction Acts, which were adopted in 1867, had" by

tion of the Freedmen and the Radical Republicans and their

sympathizers (the so-called “carpetbaggers” and “scalawags’ ‘).

The kind of gg to be expected from legislatures so domi-

nated was not.a live threat to the Negro. The imnrediate.

and real threat,’ at the time, was the reaction of the Southern

conservatives: to the Radical Republican reconstruction _ policy.

That reaction took the form of private suppression of the Ne-

groes, best typified by the familiar story o the rise and terror-

istic reign of the Ku Klux Klan, [Generally, see: Dulles, The

United States Since 1805 (U. of Mich. Press, 1999) pp, 5-28;

The Columbia’ Eneyelopedia (ad ed. Columbia Uniy. Press,

1963); article “Reconstruction.” pp. 1775-1776; United States v.

Price, supra, 383 U.S. at 800-802.] ‘The first Civil -Rights or

Enforcement Act, after ratification of the Fourteenth Amend-

ment, was the one of 1870. [Act of May 31, 1870, 16 Stat.

141.1 Ry then, the States, asesuch, were not in official opposi-

tion to the Reconstruction policy of equality for the Negro, The

wirke it, The Act of 1870{ was meant to enforce the Fourteenth

Amendment and to make its gharantees a reality, To accomplish

that purpose in the existing circumstances, private conduct had

to be reached. - .

sah! opposition | to that \ra however, was riding hard to,

- 1868 put Southern legislatures: pretty lergely under the domina- ”

“?

—60—

permost in the congressional mind, “that the words

would have been so qualified as to leave the terroristic

Klansmen beyond the law’s reach. [United States , v.

Price, supra, 383 U.S. at 805.] se Oo

The enforcement legislation, as_ this Court has but

. recently emphasized [see, pp. 55-56, supra], dealt with

all Federal rights, and with any conduct that might

have the practical effect of denying.them to those whose

_ Newly won liberty. the Congress was being carefyl to

protect. That legislation means _ngw what it meant

then. The meaning to reach private conduct is clear

now, as it was then. If cannot now be-constrited so as

“to deprive citizens of the United States of the general

protection which On its face [the statute] most reason-

ably affords.” [United States v. Moslev, ‘supra, 238

U.S. at 388; United States v., Price, supra, 383 US.

at 801.] _ |

The right. to acquire and enjoy eropesty | is a right se-

cured by the Fourteenth Amendment. It is guaranteed -’

afainst all destructive conduct, private as well as offi-

‘cial, by the Civil Rights Acts. [42 U.S.C.A., secs. 1981,

1982, 1985(3); 18 U.S.C.A..,, secs. 241, 242.] The stat- |

utory guarantee is part of Congress’ great design to,

achieve civil and political liberty for the Negro. Its lan-

guage -niust be naturally read; and so read, it is not

_ confined toa guarantee againsf state action only. [See,

~ PP, 58-59, supra. }

“The Act thus necessarily imports proscription of con-

duct that. for reasons of racial discrithination impairs

or frustrates the right to acquire andegmjoy property.

The conduct here complained of. is of that sort. The |

right to engage in it is defended by the authority of a

legislative.act of the State of California. That Act per-

lille

mits and authorizes what the Civil Rights Acts pro-

scribe. [See, pp. 23-39, supra. Pe ;

Section 26 is thus seen to be in direct Opposition to

_ Federal policy. It permits or authorizes that which the

‘Federal statute prohibits. The state statute is being

= just that end. The respondents here were denied

housing accommodations because of their race. To justi

- fy and legitimatize that conduct petitioners invoke sec-

tion 26. If that effect is given-to the section it is ob-

vious that conduct proscribed by the Civil.Rights, Acts

of 1866 and 1870 has been made lawful. The Suprem-

acy Clause cannot be so readily evaded. [Cases cited, p.

- 56, supra. Also, cf., Pennsylvania v. Nelson, 350 U.S.

497, 502-510; Hamm v: Rock Hill, — US. 306, 308-

312.]

2. _Petitioner’s Discriminatory Conduct Was Done Under

Color. or Pretense of Law and in That Respect Is Con- ;

trary to the Civil Rights Acts.

Even if some. state involvement is needed to make

the Civil Rights Acts applicable [see, Monroe v. Pape,

365 U.S. 167, 171; Civil Rights Cases, supra, 109 U.S.

at 11-12, 25. But, cf., Heart of Atlanta Motel v. United

States, 379 U.S. 241, 250-252] that involvement exists

«in the instant case. What petitioners have done was

done under “color of law” and that is enough to bring

their conduct within the reach of the Civil Rights |

Acts.** To be done under color pr pretense of law an act

need not be only an authorized or official act of the

State. [Ex parte Virginia, 100 U.S. 339, 347; Wi-

%“Color of law” includes ° re “pretense of law.” [Screws v.

United States, supra, 325 U.S. at 111; Baldwin v. Morgan, 5 Cir.,

= 7} 780, 786-787 ; Valle v. Stengel, 3 Cir., 176. F. 2d

| —o2—

liams v. United States; 341 U.S. 97. Cf., Home Tel, &

Tef. Co. v. Los Angeles, 227 U.S. 278, 283-286, 287-

288; United States v. Price, supra, 383 U.S. at 793.]

It is enough that it is a use, or even. misuse, of power

possessed by virtue of state law and made, possible be-

cause the actor is clothed with the. authority of state

daw. [Monroe v. Pape, supra, 365 U.S. at 485; Screws

v. United States, supra, 326 U.S. at 109, 112, 121-122.]

It is immaterial in this regard that the actors are not

‘officers of the. State. [United States v. Price, supra,

: 383 U.S. at 794, 805-806. }

The right to discriminate has been made a constitu-

tional right in California by section 26. [See, pp. 23-_

28, supra.] One who exercises that right, therefore,

and seeks to avoid any sanctions on account of it, does

so by virtue of a power possessed under and authorized

by state law. Without the immunizing effect of section

26, an owner of residential property in ‘California could

not lawfully refuse to sell, rent or lease it on grounds

of race or color. [See, pp. 15-16, supra.] Because of

that section, however, owners of, residential property

are free to refuse to sell, rent or lease on such grounds.

The.legal power so to act is theirs only because of the

power or immunity conferred by section 26. The justifi-

cation for it in law is asserted under and by virtue of

the section. Their action, therefore, is taken under color

or pretense of law. °

Furthermore, in “cases under §1983, ‘under color’

of law has consistently been treated as the same thing

‘as the ‘state action’ required under the Fourteenth

Amendment... .” [United S tates v. Price, supra, 383

U.S. at 794 (fn. 7).] We have shown that “state ac-

—63—

tion’ in the now accepted sense exists in respect of

section 26. [See, pp. 29-39, supra.] That being so, the

éonstitutionality and applicability of 42 U.S.C.A., ‘sees.

1282, 1283, are establish us, it becomes immate-

rial whether rights a

only the State, are secured by the Fourteenth, Amend-

that the state legislation, as here

gainst the respondents, is incon-

_ sistent with a valid Federatstatute.

‘VI.

The Court Below Properly Held That the Power of

. the State’s Judicial System Could Not Be En- |

listed to Enable One m the Rental Business to

Carry Out That Business in a Racially Dis-) |

criminatory Manner. ae

In the Snyder case, the petitioner Snyder, by his cro

complaint prayed for a judgment declaring that he

“has a right to have a court of law recognize

and enforce the termination of [Prendergasts’] ten-

ancy’. . . even if [his] sole reason for so terminating

and for seeking such court recognition of the same

were the race of [respondent], Wilfred J. Prendergast.”

[R. 66.] The trial court was of the view, and the State

Supreme Court, as ari alternative ground of decision,

. agreéd, [R. 74-78, 84], that this invocation of the |

court’s aid in enforcing Snyder’s discriminatory pur-

- pose was beyond the court’s constitutional power, be-

cause gn earlier California decision [Abstract Invest-

ment Co. v. Hutchinson, 204 Cal. App. 2d 242, 22 Cal.

_ Rptr. 309] had applied to such a situation the doctrine

of this Court’s decision in Shelley v. Kraemer, supra,

334 U.S. 1.

4inst an individual, rather than - _

hehe PF AVOO SD ADP cope y ce semen ser ne om .

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This Court said in Shelley, that the Fourteenth

Amendment “makes void ‘State action of every kind’

_ which is inconsistent with the guaranties therejn con-

tained, and extends to manifestations. of ‘State author-

tive proceedings .

The pririciple “cp enunciated is a complete answer

to the petitianers’ challenge of the decision below in

Snyder. Petitioners’ challenge, indeed, is not to the ap-

plicability of the § helley doctrine to the Snyder facts,

but is an attack on Shelley. It amounts to littlé more

than several variations on the theme that, S helley was

wrongly decided..

They argue in that connection that Shelley should not

be permitted to go beyond the case of a willing buyer

and seller’ who would be compelled against their wills,

by judicial enforcement of a racial covenant, to discrimi-

‘nate. [Br., 54-55.] What is ignored in that argument is

that it is the purpose of the Fourteenth Amendment -to

‘protect the individual against racial discrimination by

the State; and, that, when the aids or enforces _

- such discrimination through the processés-of its courts,

‘ + it is the State acting governmentally that imposes the

- discrimination upon the unwilling victim. That victim, has

a constitutional right, as this Court said in Terry v.

Adams, supra, 345 U.S. 468, “to be free of racial dis-

crimination . . .”” As Mr. Chief Justice Vinson later ex- |

_ plained Shelley (in which he wrote this Court’s

opinion), this Court “held that such judicial action

which operated directly against the Negro petitioners

and deprived them of their right to enjoy their -property

solely because of their race, was state action and con-

stituted a denial of ‘equal protection.” [Barrows v

Jackson, 346 U.S. 249, 261, Vinson, C.J., diss.] That

is the real thrust of Shelley—the effect of the court’s

action, enforcing discrimination, upon the person whom’ —

the Fourteenth Amendment protects againgt the State.

Also ignored in petitioners’ argument is the signif-

icance of Barrows v, Jackson, supra, 346 U.S. 249.

What was sought from the court there, was not com-

pulsion of a discriminatory choice by one who wanted

- to make a nondiscriminatory one, but damages by one

party to the covenant for the other’s breach of it. But,

this Court had no difficulty in upholding the state

court’s refusal to grant the requested relief. This, be-

cause of the effect such judicial relief would have in

continuing and encouraging racial discrimination by

others against those the Amendment protected from racial

discrimination by the State. ’

The thrust and sweep of Barrows is, serhonn, best

understood by a consideration of Mr. Chief Justice Vin-

son’s dissent, Which has unusual significance because

of his authorship of the Court’s opinion in Shelley. The

Chief Justice said [346 U.S. at 267]: “The suit is di-

rected against the very person whose solemn promise

helped to bring the covenant into existence. The plain-

tiffs ask only that respondent do what she in turn |

had a right to ask of plaintiffs—indemnify plaintiffs

for the bringing about of an event which she recognized

‘would cause ‘injury to the plaintiffs.” And, at page

268: “The Court should not undertake to hold that the

Fourteenth Amendment stands.as a bar to the state

court’s enforcement of its contract law.” As seerr, the

Court thought otherwise.

The instant case ,is, in effect, no different from

- Barrows. Just as the Fourteenth Amendment stands in

the way of a state court’s enforcing its contract law

ipl ene eee 03 nen tence ate Brio alin tn hit VaR Dirt alten Ka ie Sarin ne NN AP an ae ne

—

when the result of so doing. will effectuate racial dis-

crimination, so does it bar a state court from enforcing

its eviction laws when the result of so doing will ef-

fectuate racial discrimination.

Petitioners urge [Br. 60] that to uphold California’s

business landlord’s racially discriminatory rental *policy

means that “an issue of Constitutional proportions and

psychiatric overtones may be presented in virtually every

dispute between members of different racial, religious

or political: groups.” | :

Petitioners protest too much.. The question whether |

a landlord is evicting a tenant solely by reason of his

race, is a question of fact, no more nor less different

of ascertainment than if there were a statute which

prohibited that conduct and allowed a suit’to enjoin it

or to recover damages because of it. [e.g,, the Unruh

Civil Rights Act, fn. 5, p. 8, supra.] - But peti-

tioners make no contention that such legislation is in- —

valid; and, indeed, it is valid. [See, Colorado Anti-

Discrimination Com. v. Case, 151 Colo. 235, 380 P.

2d 34; Massachusetts Com. Against Discrimination v.

Colangelo, 344 Mass. 387, 182 N.E. 2d 595.]

A denial of equal protection to petitioner Snyder is

asserted by petitioners, because in Hill v. Miller, supra,

64 Cal. 2d 757, 415 P. 2d 33, 51 Cal. Rptr. 689, the

court below affirmed a judgment denying the tenant

an. injunction against a threatened eviction.” [Br.,.

.85What was decided in Hill was only that there was no cause

‘of action to compel an owner of a single family residence to

rent to another, albeit the reason for: not renting is based on

race. So long as no enforcement of-racial discrimination was

asked of the court, the tenant was not being defied equal protec-

(This footnote is continued on the next page) ~~.

_ > 55-58.] That difference did not depend, as petitioners

seem to be complaining, upon. an “election among avail-

able procedural formalities ; . .” [Br., 55.] It came about, .

because in Hill the landlord was not, whereas in Snyder

he was, seeking the court’s enforcement of his racially

‘discriminatory purpose. The difference is not merely

the. happenstance of the position of the parties on the

pleadings. The difference is fundamental. In the one

case, the State is involved; in the other it is not. It

makes perfectly good sense, as well as being sound con-

stitutional doctrine, for the rule to be that “a State may

not enforce racial discrimination.” [Henkin, Shelley v.

Kraemer: Notes for a Revised Opinion, sadl U. of Pa.

Law Rev. 473, 491.] ;

Shelley is not the only case refusing to enforce pri-

vate rights or claims, -because to do so would put the

State, through its courts, in the position of abridging

a federal constitutional right secured against the State. .

A good example is New York Times v. Sullivan, 376

U.S. 254, an action between private parties, in which it

was held that a cause of action under State law for libel

could not be enforced, because enforcement would be a

detertent to exercise of the right of free press, secured

by the First Amendment as incorporated into the Four-

teenth. [See, also, Time, Inc. v.. Hill (Jan. 9, 1967),

sansantina Felis. cvneinnenl

» tion, Judicial enforcement of the discrimination, however, would

be another matter. [64 Cal. 2d at 759-760, 415 P. 2d at 34, 51

Cal. _— at sity

Conclusion.

The stints of the Staf® Supreme Court should

be affirmed; or, alternatively in Mulkey, the writ of

certiorari should be dismis®d, as improvidently granted.

lt submitted,

HERMAN F. SELVIN,

A. L. WIrRIN,

_ Frep OKRAND,

Davin R. CADWELL,

Josern A. BALL,

. ae ar NATHANIEL S. COLLEY,

ttorneys for Respondents.

a 5

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