Brief Amicus Curiae — Reitman v. Mulkey

- Offloe-Supreme Court, U.S, .

MAR 9 1967

Supreme Court nf the Uni Pa fenatne CLERK

_ OCTOBER TERM, 1966

No. 483

NEIL REITMAN, et At, |

Petitioners,

vs.

LINCOLN W. MULKEY, et AL,

eM Respondents.

¢

f

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE

IN SUPPORT OF AFFIRMANCE |

EeeeEeEEE—e———_e_eee

Louis J. LerKxowizz

Attorney General of the

State of New York

Samue. A, Hirsnowitz

First Assistant Attorney General

Grorce D, ZUCKERMAN

LAWRENCE J, Gross

Assistant Attorneys General

of ‘Counsel

*

=> 249 Press of Fremont Payne, Ine., =, 00 Waning St., nN. ¥.—BOwling Green 9.8183

s

TABLE OF CONTENTS

, . | | PAGE

_ Interest of the Amicus ........ yore TT eT Lee eeweeea’ 1

Questions Presented .............cccccepeccecsess 3

Constitutional Provision Involved ...... ole " g

Point I—Article I, §26 of the California Constitu-

tion violates the Equal Protection Clause of the

Fourteenth Amendment .............sccsese0s 4)

A. Article I,.§ 26 is not a declaration of -state

neutrality, but rather constitutes a state effort

to sanction and perpetuate racial discrimina-

tion in the sale and rental of housing accom-

modations. SKA VAOSRERS CURA RN SEES SOEKE Oe cGeS 6

1. The existence of discrimination in the sale

and rental of housing accommodations in-°

California ..........ccccceceesccccccens 6

2. Segregated housing conditions in Califor- —

nia. are in part the result of prior state

QUUIER x Kass canctuceseanssneuas ge eeeeees

3. The myth of state ‘neutrality? .......... 12

B. The scope of: the right to discriminate con-

ferred by Article I, § 26 would involve state

actiom .....; SGRN OES CNSR NR ORReSOMSSS wees 14

Pornt Il—Article I, § 26 of the California Constitu-

tion abridges the privileges of citizens of the

United States to reside and acquire interests in

real property within the State of California .... © 18

Point III—Article I, $26 is violative of federal.

rights set forth in § 1982 of Title 42 of the United

States Code ........ cece eee eee eee tee eeees 21

Conclusion 64S 6 OSS CAREERS EOE SAREE SE SSeS BeCcrasteas . 25

ii TABLE OF CONTENTS

Cases Crrep

: _ PAGE

Anderson v. Martin, 375 U. S. 399 (1964) ........ 14

Banks v. Housing Authority, 120 Cal. App. 2d 1, 260

P. 2d 668, cert. den. 347 U.S. 974 (1954) ...... 11

Barrows v. Jackson, 346 U. | Ft 3 are 17

Bell v..Maryland, 378 U. S. 226 (1964) ............. 21

Buchanan v. Warley, 245 U. 8. 60 (1917) ........... 14

Burks v. Poppy Construction Company, 57 Cal.. 2d

, | 3S Fat Perret re 2

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

oe | rrr errr errr TTT rert rrr 13, 15, 16

City of Greensboro v. ee 246 F. 2d 425 (4th :

ep eee ere Pere er errr rrr erry re _ 16

Civil Rights Cases, 109 U. S. 3 (1883) ...........6- 23;24

Clyatt v. United States, 197 U. S. 207 (1905) ...... 24

Colorado Anti-Discrimination Com’n v. Continental

Airlines, 372 U. S. 714 (1963). ................ ‘20

Corfield v. Coryell, 4 Wash. C. C. 371 (1825) ...... 18

Crandall v. Nevada, 6 Wall. 35 (1868) ............ 19

Edwards v. California, 314 U: S. 160 (1941) ........ 19

’ Evans v. Newton, 382 U. S. 296 (1966) ............ 16

- Gomillion v. Lightfoot, 364 U. S. 339 (1960) ....... ‘ 6

Griffin v. County School Board, 377 U.S. 218 (1964) 6

‘Hill v. Miller, 50 Cal. Rptr. 908, 413 P. 2d 852 (1966) 17

- Katzenbach v. Morgan, 384 U. S. 641 (1966) ... ee ae

TABLE OF CONTENTS | ili

| PAGE

Los Angeles Investment Company v. Gray, 181 Cal.

ee ME -nskecudkuecesecuesceuseudeesnueeaes 9.

Marsh v. Alabama, 326 U. S. 501 (1946) .......... 17

Ming\v. Horgan, 3 Race Relations Reporter, 693 ..12,13

Mulkey v. Reitman, 50 Cal. Rptr. 881, 413 P. 2d 825

NE os ie sinuadud téunathvnwutswiandians 16,17

Oyama v. California, 332 U. S. 633 (1948) ......... 14, 22

Peyton v. Barrington Plaza Corporation, 50 Cal. Rptr.

OO, S28 P. BG OUP CIDE) nn cs vvewscvevscccsnss 15, 16

Prendergast v. Snyder, 50 Cal. Rptr. 903, 413 P. 2d.

| 847 (1966) ......... ant ivik ied eerRe eR xe. 17

Shelley v. Kraemer, 334 U. S. 1 (1948) ....... 9, 10, 14, 17

Slaughter-House Cases, 16 Wall. 36 (1873) ........ 18

Smith v. Holiday Inns of America, 336 F. 2nd 630

Re Os WE ch. cuca vckacusuccuseeceskeesuce -16

Strauder v. West Virginia, 100 U. S. 303 (1879) .... 14

Takahashi v. Fish and Game Commission, 334 U. S.

410 (1948) ......ccccccccsscccccccccvcesiccccs 20

| Taylor v. Board of Education of City School District

“of New Rochelle, 294 F. 2nd 36 (2nd Cir., bs

cert. den, 368 U. S. 940............ oongesreeds 13°

Terry v. Adams, 345 U. S. 461 : a rere . 14

Truax v. Raich, 239 U. S. 33 (1915) ..........+...-19, 20

~ ‘Twining v. New Jersey, 211 U.'S. 78 (1908) ........ 19

United States v. Guest, 383 U. S. 745 (1966) ...... 19

United States v. Schackney, 333 F. = 475 (2nd Cir.,

5 risatieeeemele ss 24

Sot RS Re) SK ee .7

ee

iv TABLE OF CONTENTS

Statutes Crrep

California Civil Code, Sec. 51-52 ......6.......6. 2, 12, 20

California Community-Redevelopment Law, Sec. 33039 9

California Constitution, Art. I, Sec. 26 .. .2, 3, 4, 5, 6; 12, 13, _

14, 15, 16, 17, 18, 20, 21, 23, 24, 25

California: Constitution (1879) Art. MEE Nes es veces 11

California General Laws Acts, 260-261 (ebepesbunne 11

California Health and Safety Code, Sec. 35700 . . .2, 12, 20

Civil Rights Act of 1866, Ch. 31, See. 1, 14 Stat. 27 21

New York Civil Righgs Law, Sec. 18 .......... akg) Ae

New York Executive Law, Sec. 296 (3), (5) ...... 1,2

New York Public Housing Law, See, GED secsedsses 1

Second Civil Rights Act, Ch. 114, See. 18, 16 Stat. 140 21

* United States Code, Title 42, Sec, 1982 ........ 4, 21, 23, 24

United States Constitution, Fourteenth Amendment,

BE cca cwisnsenscucseascsccuncassdues paacee ORD

United States Constitution, Thirteenth Amendment... 21

United States Revised Statutes, Sec. 1978 (1875) .... 22

MISCELLANEOUS

Governor’s Advisory Committee, A- Report on Hous-

Gay Gs GOPAFOPUER occ cccccscasscsedcceceascses 7

The President’s 1967 Civil Rights Message to Con- |

gress, New ZOOS Tames, BSIGATT onc cccccssevece 8

President’s Committee on Civil Rights, Jo Secure

These Rights (1947) 5.0.5 .ccsccceccees ikéasees 9

TABLE OF CONTENTS Vv

PAGE

Taeuber, Carl and Alma, Negroes in Cities, ‘Aldiner

EE Sxutsccacad a cbe Gua e sheen canadien 7

United States Bureau of the Census, Current Pop-:

ulation Reports—Technical Studies: P. 23-17

SE ROD asthenen enna ?

United States Bureau of the Census, General Popula-

| tion Characteristics, California: PC(1)-6b (1961) 6

_ United States Commission on Civil Rights, Fifty

States Report (1961) .....ssceseeeeeeeeeenees 6,10

United States Commission on Civil Rights, Hearings

_ Before the United States Commission on : Civil

_ Rights, Los Angeles, San Francisco, January

PD enw enbeae gees unck en davegéaccencoase ...9, 10,11

Tnited States ‘Comniesion on Civil Rights, Report

No. 4 Housing (L9GL) ....c cece eeeeeeeeeeeeees 10

United States Housing and Home Finance Agency,

Potential Housing Demands of Non-White Pop-

ulation in Selected Metropolitan Areas (1962) .. 8

assaeneiieatintal cieaateeemaaameianiahal

|: Supreme Cot of + the uited States

OCTOBER TERM, 1966

No. 483

7%

bd

. Nem RErrMan,*ET AL.,

: _ Petitioners,

we piel

Lincotn W. MUuLkKEy, ET AL., ~<.”

Respondents.

sa

.

BRIEF OF THE ATTORNEY GENERAL OF THE

STATE OF NEW YORK AS AMICUS CURIAE-

IN SUPPORT OF AFFIRMANCE

Interest of the Amicus

a

The State of New York has been a pioneer in the enact- ~

ment of fair housing legislation. New York banned dis-

crimination in public housing. in 1939, in urban renewal

housing in-1950,? and in publicly-assisted housing accom-

modations if 1955.* By statutes. enacted in 1961 and 1963,

iN. y. Laws, 1939, Ch. 808, —, now found in Public Hous-

ing Law § 223.

N. Y. Laws, 1950, Ch. 287, now found i in Civil Rights Law,

Art. 2-A.

5N. Y. Laws,~1955, Ch. 341, now found in Civil Rights Law,

Art. 2-A; Laws, 1955, Ch. 340, now found in Executive Law § 296,

subd. 3. :

.

° eel Oe" i ST I

QE OTD IES PINON POLIO Re AE ERR A Vp Megpoten ena latent

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New York prohibited discrimination in all housing acecom-

modations, private as well as public, with the exception of --

the rental by the owner of a unit in a two-family house in

which the owner or members of his family reside or the

rental by an occupant or an owner of a room or rooms in.

a housing accommodation in which they or members of

their family reside.‘ a:

New York’s: sister state of California has also taken

great-strides in recent years in the enactment of legislation

to combat discriminatory practices in the sale or rental of -

housing accommodations.’ However, California’s progress

in seeking to provide all citizens with the opportunity to

acquire adequate housing was abruptly halted in 1964 by

the adoption of Proposition 14 by the California electorate,

after a vigorous campaign sponsored by the California

Real. Estate Association and. the California Apartment

Owners Association. Proposition 14, which was incorpo-

rated into the California Constitution as Article I, § 26,

not only has the effect of repealing existing state and local

fair housing laws in California, but purports to create a

right for any person or corporation to discriminate with

‘Cabsolute discretion’? in the sale or rent# of residential

property, regardless of the size or seope@of the housing

accommodation, and ‘‘irrespective of how obtained or

financed.’’ Se?

‘N. Y. Laws, 1961, Ch. 414, as amended b Laws, 1963, Ch.

481, now found in Executive Law § 290, subd. 5.

®In 1959, the “Unruh Act” (Cal. Civil Code §§ 51-52) pro-

hibited discrimination by any “business establishment”, which was

interpreted to encompass all businesses selling or leasing residentia

housing. «See Burks v. Poppy Const. Co., 57 Cal. 2d 463, 370 P.

2d 313 (1962). That same year the “Hawkins Act” (formerly

Cal. Health & Safety Code §§35700-35741) prohibited racial and

religious discrimination in publicly-assisted housing accommodations.

In 1963¢the “Rumford Act” (Cal. Health & Safety Code §§ 35700,.

et seq.) extended the prohibition against discriminatory practices

, to private dwellings containing more than four units.

38

™

The State of New York views the outcome of this litiga-

tion involving the constitutionality of Article I, § 26 of the

California Constitution with more than academic interest.

We are concerned with the effect that the operation’ of

this section would have on the right of our citizens, who

may be members of a minority race or religion, to freely

. travel to the State of California sitice we recognize that the

constitutional right to travel to other states would be mean-

ingless if our citizens could not obtain adequate housing

accommodations at the end of their journey. But of far

greater concern is the effect that this litigation may have -

on the future of fair housing laws throughout the country.

It is -naive to believe that the -recent experience in Cali-

' fornia, where Proposition 14 was adopted by the electorate

despite the active oppositiom of leaders of both major

political parties as well as the leaders of every major reli-

gion in the State, could not be repeated in other states.

Opponents of anti-discrimination legislation are certain to

be encouraged to mount similar campaigns in the wake of

their success in California. The. rights of members of

minorities to secure adequate housing accommodations as

well as to obtain equal opportunities for employment and

access to public accommodations might well rest on the

outcome of this litigation. ‘The time has now arisen in

which the public must learn whether the basic needs of

citizens in any state may constitutionally be subordinated

to the desires of an unconcerned, intolerant majority.

The State of New York, accordingly, files this brief. as

amicus curiae pursuant to Rult 42 of the Revised Rules of.

- this Court.

Questions Presented

1. Does Article I, § 26 of the California Constitution,

which purports to create a constitutional right to dis-

criminate in the sale or rental of interests in real. property,

a Oe ame |

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DFM, TORTS BIR OGIO IE PRT IO a tiated Sinaia a a A a aa it all RE ot ia

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irrespeetive of the scope of the housing accommodation or

the manner in gen such property was ‘obtained or fi-

nanced, violate the Fourteenth Amendment of the United

- States Constitution?

2. Does Article I, §26 of the Califorhia Constitution

“~.

abridge Federal rights afforded by § 1982 of Title 42 of |

the United States Codet

Constitutional Provision Involved

’ Proposition 14, as now incorporated into the California

Constitution as Article I, § 26, provides:

‘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 such person or persons as he, in his: absolute discre-

tion, chooses.

‘Person’ includes individuals, partnerships, | corpo-

rations 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 prop-

erty of any kind or quality, present or future, irrespec-

tive of hoW obtained or financed, which is -used, de-

signed, constructed, zonéd or otherwise devoted to or

limited for residential purposes whether as a single

family dwelling or as a dwelling for two or more per-

sons or families living: together, or independently of

_ each other,

This Article shall not apply to the obtaining of prop-

erty by eminent domain pursuant to Article I, Sections

14 and 141% of this Constitution, nor to the renting or

Qu".

°

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providing of any accommodations for lodging purpose

by a hotel, motel or other similar public place engaged |

in furnishing lodging to transient guests.

If any part or provision of this Article, or the appli-

cation thereof to any person or cireumstance, is held

‘invalid; the remainder of the Article, including. the

application of such part or provision to other persons

or circumstances, shall not be affected thereby and

shall continue in foree and effect. To this end the

provisions of this Article are severable.’™

POINT I

; Article I, § 26 of the California Constitution violates

the Equal Protection Clause of the Fourteenth Amend-

ment.

In considering the constitutionality of Article TI, §26 of

the California Constitution, it should be recognized at the

outset that this section does more than render inoperative

existing. fair housing laws and ordinances within the state.

If the amendment at issue had as its sole purpose the re-

peal of certain logislation, it would have been -simple °

enough to limit its language to achieve that result, In-’

stead, it is clear from a reading of § 26 that the object of

the Amendment -was, as described by the Supreme Court

of California in its decision below, to create ‘a purported

constitutional right to privately discriminate on grounds

which admittedly would be unavailable under the Four- .

teenth Amendment shoud: state action be involved’’. (R.

20).

This attempt to evade the prohibitions of the Fourteenth

Amendment must be deemed to have failed in at least two

vital respects. First, the effect of Section 26, the attendant

circumstances surrounding its enactment, and the history

of state involvement in housing discrimination, reveal

that its adoption cannot be considered as an act of neu-

ewe

LO A ERE A MINES OER CO

6

trality by the state as petitioners suggest, but rather con-

stitutes a state attempt to sanction and perpetuate racial

discrimination. Second, the application of the right cre-

ated by § 26 would apply to housing developments and in-

volve situations in which State action necessarily would.

be. involved in violation of the prohibitions of the Four- ~

teenth Amendment.

A. Article I, § 26 is not a declaration of state-neutrality,

but rather constitutes a state effort to sanction and

perpetuate racial discrimination in the.sale and rental .

of housing accommodations.

As is-often ‘the case in examining the effect of state

legislation in the light of a constitutional challenge under

the Fourteenth Amendment, it is necessary to consider

first the historical background and attendant circumstances

concerning the act in issue. Griffin v. County School Board,

377 U.S. 218, 231 (1964) ; Gomillion v. Lightfoot, 364 U.S. _

339 (1960). Here, the right of private discrimination set

forth in §26 must be construed in light “of the existing .

patterns of housing segregation in California and the .

difficulties that have been encountered by members of

minorities in seeking adequate housing accommodations.

Such an examination will reveal that only in a‘ historical

vacuum can Article 1, § 26 be considered ‘as an act of neu- —

trality by the State of California.

1. The existence of discrimination in the sale and rental of

housing accommodations in California. —

In 1960, there were approximately 1.3 million non-whites

residing in California, of which 883,000 were Negroes®

who were concentrated principally in the major urban

centers of the state.’

ou. oh iia of Census, General Population Characteristics,

California (PC (1)-6b), 196i.

pa’ 3 S: Commission on- Civil Rights, 50 States Report, p. 43

as a oa

!

Approximately 80% of the Negroes living in California’s

metropolitan areas were found to reside in segregated

neighborhoods.’ Recent studies show that the patterns of

segregation are increasing. For example, a 1966 survey

by the Bureau of the Census reported that the percentage

of Negroes in south Los Angeles has increased from 70%

in 1960 to 81% in 1955—Current Population Reports, Tech-

nical Studies, P-23-17.

The. substantial segregation of non-whites in California

has been-the product of ‘discrimination in the sale and ren-

tal of housing. A Report on Housing in California issued

by the Governor’s Advisory Commission on Housing Prob-

lems in 1963 revealed that it was practically impossible

for non-whites to buy new homes in southern California

subdivisions, while in northern California fewer than 100

non-whites had been able to buy homes in unsegregated

tracts in a period during which 350,000 new homes were

built. The same report noted that ‘‘even in San Fran-

cisco a survey of recently constructed apartments showed

that there were no Negroes in structures containing 97%

of the new units and no Orientals in 78%”? (Governor’ s

Advisory Commission, op. cit., p. 9).

Petitioners have claimed that the fact that non-whites —

are substantially less well-housed then whites is not due

to discrimination and segregation, but due to the complex

factors that make non-whites poorer than whites. Brief

for Petitioners, pages 42-43. While there is an element of

truth in that statement, it ignores the fact.that’even where

non-whites have the income . to purchase aie. they are

® Karl & Alma Taeuber, Negroes in Cities, Aldiner (1965), )

40. A segregation index based upon the the percent of Negroes who

would have to move if they were to live at random. in metropdlitan

areas was devised by the authors showing the following ‘figures -

for major California cities: Los Angeles 81.8%, San Francisco

69.3%, San Diego 81.3%, Long Beach 84.0%, Riverside 83.5%,

7 Bernadino 84.0%, Bakersfield 87.5%, Fresno 83.9%, Oakland

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.

Pome i i alicia a hati OIRO ero te IRONS IT ts '

8

often deprived of the opportunity of doing so due to the

erection of discriminatory barriers. Thus, in both Los

Angeles and San Francisco, it was found that non-whites

earning between $7,000 and $10,000 would probably buy

more than twice as many homes priced at $15,000 or higher

than they already own as a group if such housing were

available to them. Housing and Home Finance Agency,

Potential Housing Demands of Non-White Population in

Selected Metropolitan Areas, Table G (1962). Moreover,

since the supply of housing available to non-whites is

’ limited as a result of discriminatory attitudes, the prices

they must pay for housing accommodations are generally

grossly inflated when compared to equivalent accommoda-

tions available to white citizens.

* The inevitable result of discrimination in the sale or

rental of housing accommodations is the creation of urban

ghettos, with all its attendant disabilities. Many of these

disabilities. have been outlined in the President’s 1967

Civil Rights Message to Congress, in the following terms:

‘“‘The result of countless individual acts of de

crimination is the spawning of urban ghettos, where

housing is inferior, overcrowded and too often over-

priced.

Statistics tell a part of the story. *‘Phroughout the

nation, almost twice as many non-whites as whites oc-

cupy deteriorating or dilapidated housing. In Watts,

32.5 per cent of all-housing is overcrowded, compared

with 11.5 per cent for the nation as a whole.

The environment of most urban ghettos is the same:

Inferior public facilities and services—streets, light-

ing, parks; sanitation and police protection; inferior

schools; and isolation from job opportunities. * In

every sphere of urban life the ghetto-dweller is short-

- changed.’”

° New York Times,,February 16, 1967; p. 28.

9

Indeed, the California Legislature has itself recognized

that ‘‘racial discrimination against persons of certain

_ groups in seeking housing’’ is one of the principal causes

. of slum and blighted residential areas. See Cal. Com-

munity Redevelopment Law $ 33039(c).

2. Segregated housing conditions in California are in part

the result of prior state action. =e

The existence of racial segregation and housing in Cali-

fornia must, in large part, be attributed ‘o the effect of

restrictive covenants and to the actions of real estate .

boards—which have in the past involved — by wate

and local governments.

The use of racial restrictive covenants limiting the sale

or rental of interests in real property ‘to non-caucasians _

has been prevalent in Los Angeles County since as early |

as 1902.!° In 1920, the Supreme Court of California, in an

action seeking enforcement of a restrictive covenant

against a Negro purchaser, found that restrictions against

_use and occupancy by non-whites were valid and enforce-

able. Los Angeles Investment Company v. Gary, 181 Cal.

680 (1920). During the next three decades (until such

covenants were held to be unenforceable by Shelley v.

Kraemer, 334 U. S.,1 [1948]), with the assistance of the

California courts, the use of restrictive covenants played

a significant role in confining non-caucasians to certain

urban areas." By 1947, it was reported that Los Angeles

was widely covered by these racial restrictive covenants

and.that new housing subdivisions were blanketed by them.

President’s Committee on Civil Rights, To Secure These

palit 68 (1947).

10 Hearings before the United States Commission on Civil Rights,

Los Angeles, SarrFrancisco, January, 1960; pp. 256-257. (Hereafter

referred to as Cal. Hearings.)

Cal. Hearings, p. 257.

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Although the State of. California licenses all aia estate

brokers, it has been generally conceded that California.

real estate agents: have been a pow erful force in creating

and perpetuating patterns of segregation within the State.”

The California State Advisory Committee of the United

‘States Commission on Civil Rights concluded in 1961 that

a large rheasure of blame for the existence of discrimina-

tion in California must be placed on the. real estate in-

dustry. The Committee stated that:

‘**# * * So far as Committee ee ad has been given,

it would appear that a considerable number of leaders

in‘the real estate’industry still Sairrsaaaget, Be support and

_ advance the concepts of segregation in their business.

Their actions, in large part, appear to foster continued

discrimination in California. In such population cen-

ters as Los Angeles and San Diego, the realty boards

have no Negro members whatsoever. This is particu-

larly disturbing when it is known that such boards

represent the top professional association of real

estate brokers and that under State law, their members -

alone are entitled to use the coveted term ‘realtor’ in

business advertising.’? U..S. Commission on Civil

Rights, 50 States Report, p. 44 (1961).

In the Palo Alto-area, the United States Civil Rights

Commission learned that only three of the 600 real estate

_ brokers and salesmen showed property on a non-discrimi-

natory basis.”*

In addition to the actions of state licensed real estate

brokers. and the state responsibility in enforcing restric-

tive covenants prior to the Shelley decision, the state, as

well as the federal government, had .contributed to the

existence of — ted patterns by pouring public funds

ay. pee Cal. H rings, pp. 257, 483 et. seq.

i8 U.S. Commission on Civil Rights Report No. 4, Housing, |

p. 123 (196),

hr hae > 4 ae

into’ housing projects which openly discriminated against

non-white citizens. The San Francisco Housing Author-

ity had adopted a policy in 1942, which, until it was

enjoined from continuing ‘its discriminatory practices

pursuant to court order obtained in Banks v. Housing

Authority, 120 Cal. App. 201, 260 P. 2d 668, cert. denied

347 U. S, 974 (1954), provided that: ¢

‘‘In the selection of tenants for the. projects of this

’ Authority, this Authority shall act with reference to

the established usages, customs and traditions of the

community * * * and shall not insofar as possible en-

force the commingling of races.* *.*”? (Emphasis

added) 260 P; 2d at 671.

. With respect to assistance furnished by the. Federal

Houslag Authority, an’ FHA official stated that of the

125,000 FHA assisted housing units built from 1950 to _

1954 in the Los Angeles ‘area, only 3,000 ‘units were avail-

_able for purchase by rion-whites." ;

In addition to the actions already described; the State

of California has in the past specifically barred certain -

. minorities from acquiring particular interests in real prop-

erty. Thus, in 1879, California adopted a constitutional

provision authorizing the delegation of power to localities

to zone Chinese into particular areas, or to remove them

completely from the limits of cities and towns. ‘California

Constitution, Article XTX (1879). This constitutional pro-

~ yision was not repealed until 1952. The California Legis-

~ lature also enacted an Alien Land Law in 1920 (Cal. 1

General Laws, Acts’ 260-261) which prevented aliens who

were ineligible for citizenship from acquiring .interests in

real property. It was repealed in 1950. .

‘It should be pointed out that the above is not inti

to single California out by way of condemnation for the

existence of megane a patterns.. This same criti-

“ Cal. Hearings, p. 258.

4

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12° °

cism could probably be leveled at most states in this union.

Nor has California shirked its responsibility in seeking

to correct this situation as shown by the passage of their

. Legislature in recent .yéars of the Unruh, Hawkins and.

Rumford Acts, supra. But the responsibility to eliminate

the evils of housing discrimination is a continuing one and

cannot be ignored as the proponents of Proposition 14 have

contended by repealing Mair housing ordinances and _ re-

“storing the State to a position of neutrality—for which

there is no historical. basis.

3. The myth of state “neutrality’’.

‘In view of the above factors which have created segre-

gated housing patterns throughout California, it is absurd

to conten” that the repeal of .existing fair housing laws

and ordina: es in California and the creation of a right

to discrinwnate with impunity in the sale or rental of

residential housing will involve an act of neutrality by the —

state.. If non-white citizens in California were unable, as

has been shown, to obtain housing accommodations except -

in urban ghettos prior to the recent enactment of state

anti-discrimination statutes, the repeal of these laws and

the creation of an absolute right to discriminate means -

the restoration of the same barriers>these citizens have.

previously faced in seeking decent shelter. .

The effect of Article I, § 26, will be to prevent the Cali-

fornia Legislature from taking any future action to break

down segregated housing patterns and to relieve the at-

tendant evils that arise in urban ghettos. It would not

only bar the Legislature from ‘seeking to ameliorate the

problems faced by members of minorities in acquiring de-.

cent housing, but would prevent the California courts from

any extension of common-law: policies in this area. In this

regard, it should be noted that the Supérior Court in

Sacramento County, in the case of Ming v. Horgan (No.

97130), June 23,-1958, 3 Race Rel, L. Rep. 693), held that

a Negro could not be excluded from purcha’ing a new

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tract home i in a subdivision in the Sacramento area w hich -

had obtained FHA and VA i insurance solely because of his

race—despite the absence of any - statutory provision at

that time barring racial discrimination i in the sale of hous- —

ing. . The Court stated at page 12 of. its memorandum

opinior:

— con e-courts close their eyes to the inevitable

result that if\they should uphold defendants in their

asserted right of freedom of: contract, they would for -

ae a a be reverting to a ‘separate but’

equal’/rule for those for whom the’ builders and

realtors choose to apply it? * * * If the courts were

‘ta * * * accord to builders and realtors the unfettered

freedom of contract here contended for, the consti- _

tutional guarantees of equal protection and non-

discrimination would be accorded only secondary im-

portance and they would have to recede-from a good

dea) that has-been laid down in recent years as fun-

damental doctrine * * *”? »

If the right to discriminate which Article I, $26 purports

. to. provide is held constitutional under Fourteenth Amend-

ment requirements, the issuance of such decisions, as in

the Ming case, supra, weuld be proscribed in thie future.

“In sum, the operation of Article I, 4 26 can only serve

to perpetuate the present patterns of segregated housing

and. encourage the development of simila tterns in the

future. Even if the State or its subdivisions had not been

- indirectly responsible for-housing segregation in the past,’

it may not by eonstitutional amendment seek to perpetuate

the existence ef segregated housing areas. Cf. Burton v.

Wilmington Pasting Authority, 365 U. S. 715, 725 (1961) ;

Taylor v. Board of Education of City. School District of

New Rochelle, 294 F. 2d 36 (2nd Cir., 1961), cert. denied

368 U. S. 940. Nor may the State encourage, or furnish

the vehicle, by which racial prejudice may operate against

—

eae ne "14

any. group, whether by express statutory prohibition or

by indirection. Anderson v. Martin, 375 U. S. 399, 402-404

(1964) ; Terry v: Adams, 345 U . 5.461 (1953). ‘

Nearly a century ago, this Court, in speaking of the pur-

‘ poses of the Fourteenth Amendment, stated in. Strauder v.

West Virginia, 100 U. S. 303, 307-308 1879) :

«<* * * The words of the [fourteenth] amendment, it

is true, are Pohibitory, but they contain a necessary

implication of a positive immunity, or right, most valu-

able to the colored race,—the tight to exemption from -

unfriendly legislation against them distinctively: as

colored,—exemption from lega] discriminations, im-

plying inferiority in civil society, lessening the security

of their enjoyment of the rights which others enjey,

and discriminations which are steps towards redueing

‘: them to the condition of a subject. race.’? (Emphasis

supplied) |

Articl’ I, §:26 is, in purpose and effect, an example of the’

type of “unfriendly legislation’’ that the Fourteenth

Amendnient was intended to proscribe.

B. ‘The scope of the right to discriminate conferred by.

Article I, § 26 would involve state action. «

There can be no question that. discriminatsty State

action abridging the right of any person to acquire, enjoy,

.own and dispose of property is-in violation of the Four-

teenth Amendment. Shelley v. Kraemer, 334 U. §. 1, 10

(1948); Oyama v. California, 332 U. S. 633 (1948);

Buchanan x. Warley, 245 U. S.'60 (1917). Since it is im-

possible to fashion and apply a precise formula for recog-

nition of State responsibility under the. Equal Protection

Clause, this Court has stated: cin,

‘“Only by sifting facts and weighing circumstances

can the non obvious involvement of the State in pri-

e. . ."s | |

7 ws é

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- ¢ ei

‘vate conduct be attributed its true significance.’ “i

_ Burton v. Wilmington Parking Authority, 365 B. S.

715, 722 (1961).. .

i

“The full scope of the right to discriminate asec by

the California amendment at issue cannot help but i involve

State action in a significant manner. P

Although’ the language in the ‘‘Argument in favor ‘of

Proposition 14” on the. official ballot (Petitioners’ Brief,

App. 3-5) is subtly’ phrased to imply that it is only the ~

individual homeowner whom the amendment is designed

to protect, it is clear from a reading of the proposition

‘itself that it is the large.apartment house corporations

and realty developers and real estate agents, who will

share in the right to discriminate. Thus, the term ‘‘per-

son,’’ who inethe amendment is given the right to decline -

to sell, lease or rent any interest in real property with

‘‘absolute discretion,”’ is defined to include ‘individuals,

partnerships, corporations, and other legal entities and

their agents or representatives,’ excluding only the State

or any subdivision thereof with respect to property owned

by it. The term ‘‘real property”’ is ‘defined to include ‘‘any

interest in real property of any kind or quality, jiresent or

-future,-irrespective of how obtained or financed, which is

used, designed, constructed, zoned. or otherwise devoted to

or limited for residential purposes * * *.°’ Only property

. acquired by eminent domain, and public Places engaged in.

furnishing lodging, are excluded from the section’s ap:

plication. : ;

The scope of Article I, § 26 3 is, rar on broad sini

to confer a right of racial discrimination on any privately

owned residential development, regardless of its size or

the amount of state and federal financial support it has

received. In Peyton ¢.

. very right. to engage in racial discrimination upon the

PPO RRSP OTS PTT

Barrington Plaza Corporation, 50.

Cal. Rptr..905, 413 PS 24 849 (Sup. Ct., Cal., 1966), this

16 . Lo

authority of Article I, §26 was asserted by Barrington

Plaza, in the City of Los: Angeles. Barrington Plaza, the

largest apartment development in the western United *

States, provides apartment living for 2,500 peopite and in-

cludes many retail shops and~professional services. ‘The

‘ development was part of the urban development program

undertaken by the,City of Los: Angeles, with 90% of its

construction costs financed by a $17,000,000 low interest

rate loan under. the National Housing Act. Defendants’

assertion of Article’ I, §26 as a-defense to a claim for

damages by a Negro physician who was refused an apart-

ment in Barrington Plaza was sustained by the Superior

Court, but the judgment was reversed by the California

Supreme Court on the authority. of Mulkey v. Reitman, 50

Cal. Rptr. 881, 413 P: 2d. 825 (1966).

Even in the absence of the.Mulkey decision, supra, there

ean be no doubt that the creation of a right by Article I,

§ 26 to engage in racial discrimination, when practiced by

a private development such as Barrington Plaza, must be

held to contravene the prohibitions of the Fourteenth

Amendment. See, e.g., Burton v. Wilmington Parking Au-

Yhority, supra; Evans v. Newton, 382°U. S. 296 (1966) ;

‘ Smith v. Holiday Inns of America, 336 F. 2d 630 (6th Cir.,

1964) ; City of Greensboro v. Simpkins, 246 F. 2d 425 (4th

Cir., 1957). As the facts set.forth in the opinion of the

California Supreme Court point out, Barrington Plaza-not —

only received substantial government financial assistance,

- but was aided by the State and local governments in re-

ceiving zoning changes to accommodate the development.

It also received building permits, sold securities, and es-

tablished shops and professional services ail pursuant to -

State ,or local approval, cooperation and authority. In

line with the reasoning of the above authorities, all these

facets of State involvement should Jprohibit- racially dis-

criminatory conduct.

The type of hopsing development described in-the Bar-

rington ‘Plaza case, supra, is by no means unique in Cali-

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- fornia today: Many of these housing projects, in terms

_ of their dimensions and fanctons alone, should be obliged

to conform to, the same constitutional restrictions as were

imposed on the company town in Marsh Vv. Alabama, 326

U. S. 501 (1946): .

(In practice, there are few residential housing projects.

that cannot be said to depend upon State support in Signifi- -

cant involvements. The issuance of corporate charters, the

licensing of real estate brokers, the granting of. zoning

awards, the recording of deeds, and the construction of

roads and sidewalks all involve aspects of State action..

“Moreover, State action would be involved in any‘ attempt

by the California courts to enforce or recognize the right

_ to discriminate accorded by Article I, §26. Thus, in Hill

-y. Miller, 50 Cal. Rptz. 908, 413 P. 2d 852 (1966), an action

..to restrain a landlord from evicting.a Negro tenant, solely

because of his race, was dismissed by the Trial Court by |

virtue of Article I, § 26, prior to being reversed by the

California Supreme Court upon the authority of Mulkey v.

Reitman, supra. See also Prendergast v. Snyder, 50 Cal.

Rptr. 903, 413 P: 2d 847 (1966). Here, again, even in the

absence. of the Mulkey: decision, the enforcement or sanc-

tioning by the State judiciary of conduct based on racial

discrimination would be violative of the Fourteenth Amend-

ment. See Shelley v..Kraemer, supra; Barrows v. Jackson,

346 U. S. 249. (1953).

To attempt to carve out.an exception to the ‘‘State

action’? concept by declaring that the right conferred by

§ 26 shall apply to any interest ‘‘irrespective of how ob-

tained or financed’’ is a meaningless gesture. Clearly, a

State constitution may not dind this Court in defining the

area in which discriminatory conduct may flourish with

impunity. While there may be residential properties: in

which the extent of State involvement is minimal, the ap-

_ plication of § 26 is in no manner confined to that area.

The highest court in California, with the primary re-

sponsibility of preserving, where possible, the constitutional

~~

portions of State enactments, found it impossible to dif-

ferentiate between those portions or applications of the

Amendment which: might preserve a.‘‘proper basis for

_discrimination’’ consistent with Fourteenth Amendment /

' requirements (R. 29-31). The language and, object of the

Amendment leaves no ‘opportunity for severability unless

the definition of the right to discriminate sought ‘to be

accorded is.rewritten by this Court. The entire Amendment

must, accordingly, be held invalid as a violation | of the

ahi esa Amendment.

POINT Il

| Article I, § 26 of the California Constitution abridges

_ the privileges of citizens of the United States to reside _

and acquire interests in real property within the State

of California.

" Section 1 of the Fourteenth Amendment provides:

‘All persons born or naturalized in the United States,

- and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside..

No State shall make or enforce any law which shall

. abridge the privileges or immunities of citizens of the

United States * * *’’.

The exact nature of the privileges and immunities which

are derived from national citizenship has been.a subject

of dispute since the issuance of the opinion of Mr. Justice

Miller in the Slaughter-House cases, 16 Wall. 36.(1873)."°

However, it is well established that the right to move freely

from state to state is an incident of national citizenship ©

_ Prior to the adoption of the Fourteenth Amendment, the

privileges and immunities of citizens in the “several States were

said to include “the enjoyment of life and liberty with the right .

to acquire ‘and possess property of every kind.” Corfield v. Coryell,

4 ——. Cc. c a er

19

7

A

protected by the privileges and immunities clause of the

/ Fourteenth Amendment against state interference. - Cran-

‘dall v. Nevada; 6 Wall. 35 (1868); Twining v. New Jersey,

211 U. S. 78, 97 (1908) NPruae # v. Raich, 239 U. S. 33, 39

(1915) ;

(1966).

=

In Edwards ¥: nia, 314 U.S. 160 (1941), where

this- Court invalidated a California statute designed to

keep indigents from migrating to California, the right of,

American citizens to enter into’ and abide in any state

o

served as the basis for the concurring opinion of Mr. Jus- |

tice Douglas, joined by Justices Black and Murphy. Jus- /

tice Douglas observed that to permit states to bar .in-.

digents from residing within their borders would allow:

««* * * such an exception to be engrafted on the t

of national citizenship * * * [as] to contravene every

‘conception of national unity * *,* It would prevent a

citizen because he was poor toes seeking new horizons

in other States. It might thus withhold from large

segments of our people that mobility which is basic to

any guarantee of freedom of opportunity.’3 (p: 181)

A state is not only prohibited from directly interfering

- with the national right to enter its borders, as in Edwards

v. California, supra, but may not seek to circumvent this

right by imposing barriers preventing non-residents

from obtaining.employment. Thus, in Truax v. Raich, 239 ~

U. §. 33 (1915), this Court sustained the contentions of a

non-resident alien that an Arizona law, which required

all Arizona employers of more.than five workers to hire

not less than 80% qualified or native born citizens of the

United States, was invalid. The Court declared that Raich,

having been lawfully » admitted into the country under

Federal law, had a. Federal privilege to enter and abide -

in ‘‘any state in the union,’’ and that this privilege to '

enter and ‘abide in any, state carried with it the ‘‘right to |

nited States v; Guest, 383 U.S. 745, 757- 759

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20 \

_ work for a living in the common occupations of the com-

munity. *?> The Court went on to state that:

“The assertion of an authority to deny to aliens the

opportunity of earning a ‘livelihood when lawfully —

admitted to the State would be tantamount to the

assertion of the right to deny them entrance and abode,

for in ordinary cases they cannot live where they can-

not work. -And, if such a policy were permissible, the

practical result would be that those lawfully admitted

to the country * * * instead of enjoying ina substan-

tial sense and in their full scope the privileges con-

ferred: by-admission, would be segregated in such of

the States as chose to offer hospitality.’’ (p. 42)

Similarly, in Takahashi v. Fish € Game Commission, 334

U. S. 410 (1948), this Court followed the principles stated

in Truaz v. Raich, supra, to invalidate a California law

‘barring the issuance of commercial fish licenses to any

person ineligible for citizenship. See also Colorado Anti-

Discrimination Commission v. Continental Air Lines, 372

U. S. 714, 721 (1963).

If a state may not interfere with the national privilege

of citizens {as well as aliens) to enter and abide in any

state in the union by limiting their right to secure employ-

ment, it should necessarily follow that a state may not .

constitutionally limit their right to secure housing within

its borders by laws which sanction, if not encourage, racial

and religious discrirhination in the- sale and rental of :

housing accommodations.

' The enactment of the Unruh, Hawkins and Rumford

Acts by the California Legislature were based upon the

recognition of the immense difficulties that have been en-

countered by members of minority races in obtaining ade-

quate housing in California. The repeal of fair housing

legislation and the création by Article I, § 26 of a ‘‘right’’

to engage in racial or religious discrimination in housing.

transactions, will necessarily discourage non-whites from

21

. moving to California, will limit the housing opportunities

available to non-whites now, residing in California, and

will tend to confine them to other states and within segre-

gated locales in California itseif.

In his concurring opinion in Bell v. Maryland, 378 U. S.

226, 242 (1964), Mr. Justice Douglas, in declaring that .

segregation in private restaurants was a ‘‘denial of a

privilege and immunity of national — * : stated

(p. 255) : |

“Ts the right of a’ person to eat less basic than his

right to travel, which we protected in Edwards v.

California, 314 U. S. 160% Does-not a right to travel

in modern times sink in value materially when there -

is no accompanying right-to eat in public places?’’

To the above, we might add: Is not the right to enter

into and abide in any state rendered meaningless without

a right to obtain housing free from racial discriminatory

practices that have been sanctioned by state law?

POINT Ill

Article I, § 26 is violative of federal rights set forth

in § 1982 of Title 42 of the United States Code.

42 U.S.C. § 1982 provides:

‘‘ All citizens of the United States shall have the same

right, in every State and Territory, as is enjoyed by

‘white citizens thereof to inherit, purchase, lease, sell,

hold, and convey real and personal property:’’

The above provision first appeared in. §1 of the Civil’

Rights Act of 1866 (Ch. 31, $1, 14 Stat. 27) enacted

several months after the adoption of the Thirteenth Amend- ~

ment. On May 31, 1870, after the ratification of the Four-

teenth Amendment, the above section was reenacted as

part of $18 of the Second bes sherry Act (Ch. 114, 16

PO Pm 4

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29

Stat. 140) and was recast in its present form ‘in the general

-Statutory provision of 1875 as $1978 of the Revised

Statutes. )

~ Section 1982 was relied on n by this Court in Oyama v.

California, 332 U. S. 633 (1948), in holding that\the Cali-

_ fornia Alien Land Law, as applied to bar the citizen son

of a Japanese alien from inheriting an interest in agri-

cultural land, deprived the son of the equal protection of

the laws and of his privileges as an American citizen. Re-

ferring to $4982, the Court noted that (p. 640): ‘

By federal statute, enacted before the Fourteenth

- Amendment ‘but vindicated by it, the states must

accord to all citizens the right to take and hold real.

property.’’

The Court conceded, (p. 647):

*<* * * this case presents a conflict between the State’s

right to formulate a policy of landholding within its

bounds and the right of an American citizen to own

land anywhere in the United States. When these two

rights clash, the rights of a citizen may not be sub-

ordinated merely because of his father’s country of

origin.”’

A state law may be violative of the rights afforded hy

§ 1982, despite the absence of any express language refer-

ring to any race or creed, if the practical consequences

_ of such law limits the opportunities of any class of citizens

. to acquire property interests. ‘This was true of the statute

in question in Oyama, supra, as was recognized by Mr.

_ ‘Justice Murphy in his concurring. <a in which he

observed : | :

“In its argument before us California‘has disclaimed

any implication that the Alien Land Law is racist in

its origin, purpose or effect. Reference i is made to the

23

fact that nowhere in the statute is there a single

mention of race, color, creed * * * However, an exami-

nation of the circumstances surrounding the original .

enactment * * * and its subsequent application reveals _

quite a different story.’’: 322 U.S. at 650-651.

Similary, although Article I, § 26 of the California Consti-

tution does not specifically refer to any race or creed, its

practical consequences will be to subject the non-white

.citizens of California to the prejudices of the white ma-

jority in acquiring or retaining interests in real property

without recourse to any state agency or the courts.

_ It is obvious that the rights provided by § 1982 may not

be abridged by any state statute. However, it must also

be remembered that-§ 1982 was originally enacted pursuant

to the authority of Congress to enforce the Thirteenth

Amendment. The objectives of Congress in enacting that

- section were described by this Court in the Civil Rights

Cases, 109 U. S. 3, 22 (1883), in the following terms:.

Congress, *.* * by the Civil Rights Bill of 1866,

_ passed in view of the Thirteenth Amendment, before

_ the Fourteenth was adopted, undertook to wipe out

.. these burdens and disabilities, the necessary incidents

of slavery, constituting its substance and visible form;

and to secure to all citizens of every race and color,.

and without regard to previous servitude, those funda-

mental rights which are the essence of civil freedom,

namely, the same right to make and enforce contracts,

- to sue, be parties, give evidence, and-to inherit, pur-,

chase, lease, sell and convey property, as is enjoyed

by white citizens.”’ P '

Since $1982 rests upon the authority. of the Thirteenth

(as well as the Fourteenth) Amendment, its coverage ex-

tends to any discriminatory acts which abridge the rights

_set forth therein regardless of any showing of state ac-

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24

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tion. As observed by the court i in the Civil “Rights Cases,

supra, at p. 23: ad

“Under the Thirteenth Amendment, the legislation, so

far as necessary or proper to eradicate all forms and

incidents of slavery ‘and involuntary servitude, may

be direct and primary, operating upon the acts of in-

dividuals, whether sanctioned by state legislation or

not @ @ @99

See also Clyatt v v, United States, 197 U. S. 207 (1905) ;

United States v: = 333 F. 2d 475, 486 (2d Cir.,

1964).

5

It should be evident from the above that any agreement

or action taken by private sellers or lessors of real prop-

erty to prevent Negroes from acquiring or leasing property

would be violative ofthe rights set forth in § 1982. Inso-

far as Article I, $26 of the California Constitution at-

tempts to cloak individuals and corporations with im-

- munity in discriminating against non-white citizens, in the

sale or rental of. real property, it is an abridgement of

the rights provided by {1982 and, under the Federal

Supremacy Clause, cannot be sustained. Cf. Katzenbach

_ v. Morgan, 384 U. S. 641 (1966).

4

25

_ ; CONCLUSION

For the foregoing reasons, the decision of the Court

below that Article I, § 26 of the.California Constitution

-“is in violation of the Fourteenth Amendment of the

United States Constitution should be affirmed. —

Dated: New York, N. Y., March 3, 1967.

| Respectfully submitted,

- ' Louis J. LEFKowITz

+‘ - Attorney General of the

: | State of New York.

Samue. A. HirsHow!tTz

First Assistant Attorney General ~ | - «

Grorce D. ZucKERMAN

LawRENCE J.GROsS ,

Assistant Attorneys General -

Of Counsel «

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