# Respondents Brief — Reitman v. Mulkey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0085%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1967 - **Citation:** 387 U.S. 369 ## Text - 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 wr 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 ~~ a IN THE ‘Supreme Court of the United states i * 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. re e 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, - ” F 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.] 4 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¢ el 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 ~ an 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 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- 2% ‘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 a 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. ‘ 6 a 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. I a - 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 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: 9 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; b 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 oe . . — 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 Ge 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.] . | _ SI 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 © 7 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- a 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 4 —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 - - SS 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) 43 . 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 377 U.S. 1, 5-8; N.A.A.C.P. v. Button, 371 U.S. 415, © ; _ 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 ~ 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-- - crimination by private persons in the sale or rental of © 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 ae 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 ; wt 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, s- - 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 s 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 . a Tee ial ¢ . vi tl ad Ee a Re ee 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- ity in the shape of nave, customs or judicial or execu- © 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 reftisal to allow its courts to be used to support the © 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.,. q .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) ~~. e _ > 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 ~ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0085%3A07. Public record. Not legal advice.