Appellees Brief — James v. Valtierra

ce ene et ee

I. The Doctrine of Hunter v. Erickson

Case: The Automatic Referendum Declared

Unconstitutional in Hunter is Identical to Article

, Similarly Situated Are Not Subject to

The Automatic Referendum Imposed by i

Article XXXIV Treats Similarly Situated People

Dissimilarly, Even if, as Appellants Urge, the

Class is Limited to Those Who Would t

From All Types of Public Housing Constructed or

Acquired by the State

Article XXXIV Treats Similarly Situated People

if, as the Court Below Found, the Class Is De-

fined as All Who Would Benefit From Federally

Impact of Article XXXIV Falls Most

" Heavily on Racial Minorities

2. Article XXXIV Expressly Classifies on the

Basis of Wealth

ii

$. ee oS ee eee

_ PP eeereerereeereeeaeereneeaeeeeeeeeeee

eer ere

B. be Sisnh dc Send. Renata beitiie its

Referendum For Low Reat Public

poms Poolects o.oo fol esk cece eee.

“QRRRIIER, «he ccccn eure cbawcsacseaiveses

Upon Community ot so

or Substantially Different to Justify

Out This Type of Project for an Auto-

29.

30

31

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

Block v. Hirsh, 256 U.S. 135 (1921)

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

Cipriano v. City of Houma, 395 U.S. 701

(1969)

City of Sasita Monica v. Grubb, 245 Cal.App. 718

(1965)

Dean v. Kuchel, 35 Cal.2d 444 (1950) .

Douglas v. California, 372 U.S. 353 (1963) 21, 28

Edwards v. California, 314 U.S. 160 (1941) .... 27,28

Gautreaux v. Chicago A

296 F.Supp. 907 (N.D. Ill. 1969)

Griffin v. Hlinois, 351 U.S. 12 “sre

wD US. 683 (1966). seccccseccsscocccen 21, 28, 29, 30

Hicks v. (elisha: Sb ViSuen. 619

(BD. Lar iSGd) w.cvcrvcveveccecsscce jase ae

Housing ae Vv.

35 Cal.2d 550 (1950)

Hunter v. Erickson, 393 U.S. 385 (1969)

Korematsu v. United States, 323 U.S. 214 (1944). 28, 29

Kramer v. Union Free School District No. 15,

395 U.S. 621 (1969)

McDonald v. Board of Election Commissioners of

Chicago, 394 U.S. 802 (1969)

McLaughlin v. Florida, 379 U.S. 184 (1964) ....

iv

Ranjel v. of Lansing, 417 F.2d 321

oth Cir. (1969) Pibatvaxescatioaishysauss 1

Reitman v. Mulkey, 387 U.S. 369 (1967) .......

Shapiro v. Thompson, 394 U.S. 618 (1969) ..... 20,

Skinner v. Oklahoma ex rel. Williamson, x

SAG TER Wee To ch sc dances cs taccnes

ae Cy of ahi of Union City, Caltornia"424'F-24 291 F.2d 291

S LISTERS nude das cde dance ecins 13, 24

sii’ Blair, 403 sage cdohag

ae ek addin ind vcakedacbbdduenad ese

City of

V'San Jose, 313 F. ope (ND. Cal. 1990) ....

Westbrook v. SMineloy, 2 2 sass 765 (1970) ....

Williams v. Rhodes, 393 U.S. 23 (1968) .......

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ......

Pe PROVISIONS

v

STATUTES

PAGE

California Elections Code, Section 3711 .......... Sos BE

California Government Code, Sections 6500 et. seq. ...... 32

California Health and Safety Code

Se IE 5.05504 96e0000 00 Sa deed a alone ve

Sections SS7OL Ot. BOG. ov ci.vcsccwcoesinscecscoces

Revenue Ruling 63-20, 1963 - 1 C.B.24

United States Code:

Title 12 U.S.C. Section 1(d) (3)

Title 28 U.S.C. Section 1253 ...........-.eeeeee eee

Title 28 U.S.C. Section 2281

Title 42 U.S.C. Section 1401 et. seq. ..........22-0es

Title 42 U.S.C. Section 1415(11)

vi

Stupies, REPORTS AND MISCELLANEOUS

Paces

geo pe ony tonligs g vip! maar gegen

mission on Urban

Comneaint: Decent Housing As A Constitutional Right,

42 U.S.C. §1893, Py “a Remedy For Deprivation,

- 14 How. L.J. 338 (1968)

CoMMENT: Tenant Interest Representation; Proposal For A

National Tenant's Association, 47 Texas L. REV. 1160

Housing Study, Phase 1 — Public Housing, ai a od

San Jose, California, Kaiser Engineers of Oakland, Cali-

fornia, Report No. 70-10-R March, 1970

Low Rent Housing Pre-Construction Handbook (June

1970). HUD Report, Statistical Abstract, 1968

More Than, Shelter, Social Needs In Low And Moderate

h ‘ii of the National Commission on

Congress and to the President of

States, Government Printing Office, Research .

Report No. 8 (1968)

Local Public Agency Letter #318, Supplements 2 and 3 of

February 21, 1968 (3 CCH Urban Affairs Rptr. 417,560)

Tussman & tenBroek, “The Equal Protection of The Law”,

37 Car. L. Rev. 341 (1949) ............. brhunds

>)

36

16

Supreme Court of the United States

October Term, 1970

No. 154

RONALD JAMES, et al.,

Appellants,

vs.

ANITA VALTIERRA, HOUSING AUTHORITY OF THE CITY

OF SAN JOSE, et al.,

Appellees.

No. 226

VircINiA C. SHAFFER,

Appellant,

vs.

ANITA VALTIERRA, HOUSING AUTHORITY OF THE CITY

OF SAN JOSE, et al.,

Appellees.

Appeals From the United States District Court for the

Northern District of California.

BRIEF FOR APPELLEE HOUSING AUTHORITY

OF THE CITY OF SAN JOSE.

Opinion Below.

The Opinion of the District Court is reported in 313

F. Supp. 1 (N.D. Cal. 1970) sub. nom Valtierra v.

Housing Authority of the City of San Jose, et al, and

Hayes v. Housing Authority of San Mateo. The Opinion

appears in the Appendix at pp. 168-179."

'Reference to the Appendix hereafter appears as “A”.

—a—

Jurisdiction, _—

Jurisdiction of this appeal is founded upon 28

U.S.C. § 1253, in that injunctive relicf was sought and

obtained from a three-judge district court, constituted

pursuant to 28 U.S.C. § 2281 and. § 2284, against

the enforcement of Article XXXIV of the Constitution

of the State of California on the ground that it violates

the Constitution of the United States both on its face

and as applied.

Question Presented.

Does Article XXXIV of the California Constitution

violate the equal protection clause of the Fourteenth

Amendment to the United States Constitution ‘by sub-

jecting a decision of a local legislative body approving

low rent public housing projects designed to benefit the

urban poor, who consist of a disproportionately high

percentage of racial minorities, to a spécial hufdle in

the form of an automatic referendum not required with

respect to other acts by such bodies?

Constitutional Provisions Involved.

The Fourteenth Amendment to the United States

Constitution provides in pertinent part: ..

. nor shall any State . . . deny to any person

within its jurisdiction the equal protection of the

Laws.”

Article XXXIV of the California Constitution pro-

vides in asgrags part:

. No low rent housing project shall: hereafter

be deviloped, constructed, or acquired in any man-

ner by any state public body until, a majority of

the qualified electors of the city, town or county,

a om

as the case may be, in which it is proposed to de-

velop, construct, or acquire the same, voting upon

such issue, approve such project by voting in fa-

vor thereof at an election to be held for that pur-

pose, or at any general or special election.

“For the purpose of this article the term ‘low

rent housing project’ shall mean any development

composed of urban or rural dwellings, apartments

or other living accommodations for persons of low

income, financed in whole or in part by the Fed-

eral al Comma or a state public body or to

which the Federal Government or a state public

body extends assistance by supplying all or part of

the labor, by guaranteeing the payment of liens,

or otherwise. For the purposes of this article only

there shall be excluded from the term ‘low rent

housing project’ any such project where there

shall be in existence on the effective date hereof,

a contract for financial assistance between any

state public body and the Federal Government in

respect to such project.

“For the purposes of this article only ‘persons

of low income’ shall mean persons or families who

lack the amount of income which is necessary (as

determined by the state public body developing,

constructing, or acquiring the housing project) to

enable them, without financial assistance, to live

in decent, safe and sanitary dwellings, without

overcrowding.

“For the purposes of this article the term ‘state

public body’ shall mean this State, or any city, city

and county, county, district, authority, agency, or

any other subdivision or public body of this State.”

pe ee

Statement of Facts.

This is a direct appeal from a final judgment and

decree entered April 2, 1970, by a three judge district

court granting plaintiffs’-appellee’s motions for sum-

mary judgment, declaratory judgment and a permanent

. injunction. The court below ruled that Article XXXIV

of the California Constitution violates the equal protec-

tion clause of the Fourteenth Amendment by subjecting

only low rent public housing projects to a special auto-

matic referendum. This case originated as two separate

class actions, one filed on behalf of plaintiffs in the City

of San Jose, the other on behalf of plaintiffs in San Mateo

County, California. The cases were consolidated for all

purposes by the court below.

The plaintiffs below are all persons of low income (as

defined by Article XXXIV), have been found eligible for

public housing, and placed on the waiting lists of their

local housing authorities. A majority of the Hayes

plaintiffs are black (A. 80-85) and a majority of the

Valtierra plaintiffs have Spanish surnames (A. 1). They

now live in overcrowded, rundown, substandard dwell-

ings. For even this sort of unsafe, unsanitary and de-

meaning housing, they are required to pay rents that

are exorbitant in light of their income, with the result

that they are deprived of other necessities, such as

food and clothing. These persons have not been placed

in low-rent units by the local housing authorities because

no units are presently available (A. 31,123).

ion‘ tho -sonielog Sect 4 tho tap Ab-tee Comets isa

Authority (A. 123) and 625 eligible families County H

ry ae (A. 123) and 625 eligible yr pe pty Pris

Authority of the City of San 10.

the Valiierne Spptlloce bem as ab dee 3 joie aad

for more than one year. (A. 3).

ng list

All

list

axial

Pursuant to Article XXXIV, a low-rent housing plan

developed by the Housing Authority of the City of San

Jose was submitted to the voters in November of 1968.

This plan called for the development of up to 1,000 units

to be dispersed among various areas of San Jose with each

structure having not more than four dwelling units. That

proposal failed (A. 29).

The principal method by which housing authorities

can provide safe, sanitary and decent housing for these

thousands of poor people lies in the development of

public housing projects with federal funds under the

United States Housing Act of 1937 (42 U.S.C. §§ 1401,

et seq.). In order to implement the Housing Act

of 1937, California enacted The Housing Author-

ities Law (California Health and Safety Code §§ 34200

et seq.). The California law included specific legislative

findings that unsanitary and unsafe dwelling accommo-

dations exist in areas of the State where persons of low

income are found to reside; that there is a shortage of

safe and sanitary dwelling accommodations available at

rents which low income people can afford; and that

such conditions constitute a menace to the health, safety,

morals and welfare of the residents of the State.

The Housing Authorities Law also provides that a

public corporate body, to be known as the housing

authority, can be activated in each county and city.

That authority cannot act unless the local governing

body declares a need therefor. Resolutions were passed

declaring the need for a Housing Authority on March

18, 1941 by the Board of Supervisors of San Mateo

County (A. 111) and on January 16, 1966 by the San

Jose City Council (,A. 25).

a

Once a housing authority has been activated, a pro-

fessional staff is hired to develop plans for participa-

tion in leasing and construction programs. For new con-.

struction, the housing authority develops an application

for a preliminary loan from the Department of Housing

and Urban Development (hereafter, “HUD”). The loan

money is used to pay for an option on a site, the prepara-

tion of project plans, and other development expenses.

Federal law requires consent of the local governing

body of the city or county before a preliminary loan

application is sent to HUD. Thus, even before money

to purchase an option on a site is granted, experts from

the local governing body, the local housing authority

and the federal government have reviewed the plans

and have determined not only that the project is needed

but also that it is well planned, feasible as to cost and

size, and complies with a myriad of technical require-

ments.

When a project has been completely planned and

approved, the housing authority issues federally guar-

anteed bonds for sale to the public. Such bonds are not a

debt or liability of the state or municipality. With the

proceeds of the sale of bonds, the housing authority re-

pays the preliminary loan, purchases land and constructs

the units. An annual contribution contract between the

housing authority and HUD, by which the purchasers of

bonds are repaid, and a contract between HUD and the

city or county for payments in lieu of taxes (usually

10 percent of the rents) to meet the cost of municipal

services are negotiated. No local funds are used; the

development and construction costs are borne completely

by the federal government and by the tenants of the

housing units.

re

Article XXXIV interjects the automatic referendum

requirement after need for the housing program has

clearly been ascertained, but before any of the funding

and any final engineering work have been done. Ap-

proval or disapproval of a proposed project by voters

is obviously not based on their expertise in the housing

field. The question presented to the voters is whether

they want low rent public housing in the local jurisdic-

tion. No other type of federally funded local project

is subjected to the same automatic referendum require-

ment.

Summary of Argument.

L

The Doctrine of Hunter v. Erickson Applies to This Case.

Article XXXIV of the California Constitution, like

the Akron City Charter in Hunter v. Erickson, 393

U.S. 385(969), singles out a particular type of action

by the local legislative body — in this case, the author-

izing of low rent public housing designed to benefit a

particular group (urban poor consisting of a dispro-

portionately high percentage of racial minorities) — and

imposes a special obstacle, in the form of an automatic

referendum, not put before any other group seeking

similar action by the legislative body.

Appellants claim that Article XXXTV was adopted to

“fill a gap in California in the referendum system.”

Article XXXIV does more than “fill the gap.” City coun-

cil resolutions on low rent public housing could, without

violating equal protection, be subject to the general ref-

erendum provisions of the California Constitution. The

vice of Article XXXIV is that it requires only low rent

public housing projects to be submitted automatically to

a mandatory referendum.

Others Who Are Similarly Situated Are Not Subject

to Article XXXIV.

Traditional equal protection analysis shows that

Article XXXIV is unconstitutional. The test is whether

the class to whom the legislation in question applies in-

cludes all who are similarly situated. Whether the simil-

arly situated class in this case be defined narrowly or

broadly, Article XXXIV fails to accord similar treatment

to all its members.

The most appropriate similarly situated class in this

case is substantially identical to the class defined in

Hunter—all who seek to regulate the real estate market

in their favor. Article XXXIV does not treat alike all

who are in this class.

If the similarly situated class is limited to include only

those with an interest in public housing, Article XXXIV

treats low rent public housing differently because under

California law “middle and normal market” public

housing can be constructed without undergoing a manda-

tory automatic referendum.

If the class includes all who benefit from federally

funded state or local projects, Article XXXIV treats

similarly situated people dissimilarly by affecting only

those who benefit from federally funded low rent hous-

ing projects.

If the class is defined as all who benefit from federal

financial assistance to housing, Article XXXIV affects

only those who would benefit from this particular type

of housing.

Thus, however the similarly situated class is defined,

Article XXXIV is discriminatory. Unless that discrim-

ination can be justified, Article XXXIV must fall.

—j—.

Ii.

Article XXXIV is Not Supported by Compelling State Interests.

The impact of Article XXXIV falls most heavily

on racial minorities, and it expressly classifies on the

basis of wealth. Both of these classifications are “Con-

stitutionally suspect.” In addition, decent housing is a

fundamental interest of the poor. Each of these circum-

stances requires a showing of a compelling state interest.

The conclusion of the court below that Article

XXXIV’s “impact falls on the minority resulting in an

impermissible burden which constitutes a substantial and

invidious denial of equal protection” is amply supported

by the record. The uncontroverted affidavits on the racial

makeup of the local urban poor and the state and national

studies cited in the record consistenitiy document that

urban poor who qualify for low rent public housing con-

sist of a disproportionately high percentage of racial

Article XXXIV cannot be saved upon the ground that |

it does not expressly classify on the basis of race. This

Court has said that it will look to the “ultimate effect” of

the challenged provision. Because the impact of Article

XXXIV falls most heavily on racial minorities, it is irrele-

vant whether it is expressed in terms of race.

Article XXXIV classifies on the basis of wealth by its

express application to “persons or families who lack the

amount of income which is necessary . . . to enable them

to live in decent . . . dwellings.” Even though cases in

test because of a wealth classification also involved a

fundamental interest of the poor, this Court has never

stated that a fundamental interest is a prerequisite to the

anne.

ing is a fundamental interest of the poor.

No compelling state or local interests justify an av- :

tomatic referendum for low rent public housing projects.

_ Article XOCXTY is not, as appellants suggest, consistent

with the policy underlying the California Constitutional

provision requiring a vote before bonded indebtedness

can be incurred for which the local property owners will

be responsible. Unlike general obligation bonds, housing —

authority bonds are not a debt or liability of the munici-

pality. No local funds are used. In addition, after the

project is completed the local community receives pay-

ments in lieu of taxes to meet the cost of municipal

services.

The long term environmental effects of public hous-

ing upon the community are not so unique or substan-

tially different as to justify singling out this type of proj-

ect for an automatic referendum. The housing projects

of institutional design to which appellants refer are now

prohibited by federal law. In addition, HUD guidelines

recommend scattered site projects to prevent high con-

centration of low income tenants. Moreover, local gov-

erning bodies make many decisions, not subject to an

automatic referendum, such as zoning, which have a

greater impact on the environment than low rent public

housing.

Finally, Article XXXIV is not only unsupported by

local interests, but it is actually contrary to them.

compelling state interest test.‘ However, if it is, the pre- —

requisite has been met in this case because decent hous- _

1. The doctrine this Court expressed last term in

Hunter v. Erickson, 393 U.S. 385 (1969), places Article

XXXIV in violation of the equal protection clause by

imposing a special obstacle of an automatic referendum

before those who would benefit from low rent public

housing—the ill-housed poor, consisting of a dispropor-

tionately high percentage of racial minorities.

2. Acts of a legislative body which benefit other

classes of people similarly situated are not subject to

such an automatic referendum.

3. Because Article XXXIV expressly classifies on

the basis of wealth, involves a fundamental interest of

the poor, and its burden falls most heavily on racial

minorities, it must fall unless supported by compelling

state interests. No such interests have been demonstrated.

This Court decided substantially the same issue

presented by this case in Hunter. The facts of this case

and Hunter are strikingly similar. In Hunter, an amend-

ment added to the City Charter of Akron by the initiative

process prohibited enactment of any open housing

ordinance unless first approved by city-wide referendum.

Ruling the amendment violative of the equal protection

clause, this Court stated: .

. . . [T]he state may no more disadvantage any

particular group by making it more difficult to

enact legislation in its behalf than it may dilute —

any person’s vote or give any group a smaller —

representation than another of comparable size.” —

393 U.S. at 393. (Emphasis added).

Article XXXIV of the California Constitution, like

the Akron City Charter, singles out a specific decision

of a legislative body — the authorization of low rent

sion of a legislative body. Thus, not only must the poor

first obtain approval of a low rent public housing project

from both the city council and the housing authority

but they must also then wage a campaign to win voter

approval.

This special referendum obstacle is particularly bur-

densome to beneficiaries of low rent housing legislation.

As a class, the poor tend to be less educated and more

lacking in political know-how than other groups. This

Court recognized in Hunter that minority groups may

be particularly disadvantaged by a referendum require-

ment:

“The majority need no protection against dis-

crimination and if it did, a referendum might be

bothersome but no more than that. Like the law

requiring specification of candidates’ race on the

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

§ 137 places special burdens on racial minorities

within the governmental process. This is no more

permissible than denying them the vote on an

equal basis with others.” 393 U.S. at 391.

. [I]nsisting that a State may distribute 1

lye, pomue.ee cilenatond Skt

change

393 U.S. at 392.

The policy articulated in Hunter should be reaf-

to violating the principles of Hunter v. Erickson ... .”

(Appellant Shaffer’s Brief, p. 58.) This is simply not

true. The three cases cited are Spaulding v. Blair, 403

F. 2d 862 (4th Cir. 1968); Ranjel v. City of Lansing,

417 F. 2d 321 (6th Cir. 1969), cert. denied, 397 U.S.

980 (1970); and Southern Alameda Spanish Speaking

Organization v. City of Union City, California, 424 F.

2d 291 ‘(9th Cir. 1970). These three cases involve:a .

common issue which has.no relevance to this case of —

to Hunter.. The issue in each was whether the regular —

initiative and referendum provision of the state general

law or of a city charter could be used to overturn a

zoning ordinance passed by the city council where racial —

a special legislative procedure which required a certain:

type of decision by a legislative body to be submitted

automatically to a referendum vote.

Appellants also claim that Article XXXIV was

added ‘to. the California Constitution to “fill a gap

in California in the referendum system” (Appellant

Shaffer’s Brief, pp. 6, 34) and for this reason can be dis-

tinguished from Hunter (Appellant City Council’s Brief,

p. 19). This claimed gap allegedly occurred when the

California Supreme Court decided in Housing Authority

v. Superior Court, 35 Cal. 2d 550 (1950) that a resolu-

'

all

cH

-

}

4

i

Fe

ry

Be

en RR te ne se a

ese

the general referendum procedure under the California

Constitution* (which would permit. a referendum if a

petition with the requisite numbers of signatures were

filed), Article XXXIV requires all low rent public hous-

ing projects to be submitted atuomatically to a mandatory

referendum vote without’ a petition. It is this unique

automatic referendum requirement that makes Article

XXXIV offensive to the equal protection clause. -

18 ke ;

Others Who Are Similarly Situated Are Not Subject to

The Automatic Referendum Imposed by Article

XXXIV.

Even if this Court had never before considered the

factual situation presented in Hunter v. Erickson, tradi-

longed ts violating the éiqual:quosection: chemse: tio first

question is whether the class to whom it applies includes

‘Such resolutions could be made subject to the general referen-

amendment.

not say

j control, that

projet are absolutely fee of voter contol, but only hat they ae

itn. ca

all :wh: are, similarly situated. Skinner v. Oklahoma,

excnél..Williamson;: 316. U.S. 535..(1942) /:.f-others

similarly. :situated. are. not included. ‘within the. claas—

reached by. the Jegislation the.court must then determine _

whether there is a rational basis or a compelling interest — aq

to. justify.such different treatment. Kramer v. Union

Free School District No. 15, 395 US.621,:628.( 1969), —

In this case,.as will: appear, Article XXXIV-does-not _

treat alike all who are similarily situated, the compelling —

es ee eee

to meet that test.

Whether, the similarty. sitnsted.claes:in this:.case:be

defined narrowly or broadly, Article XXXIV: fails to

accord similar treatment to all members. of. the ‘class.

For examiple, even if the similarly situated class were

defined to include only persons having an interest in

public. hoysing—the narrowest conceivable similarly

situated class—the California statutory scheme would

stilt be found: not to treat all members of the. class

alike, Middle and normal income housing’ (but. not_low

income housing) can be constructed by a public agency

without a prior vote of the people, as will be shown.

Ae. , Those Who Are Similarly Situated But Not Subject to the

“Automatic Referendum Axe the Same as Those Described

in Hunter.

> The similarly ‘situated class in Hunter was defined as

al “thie who vought to regulate foal property trams

actions . . . .” The Court concluded that certain mem-

bers of that class—those who would benefit from open

housing legislation — were treated differently from those

Cechadi te salbibiik ric Wiel Prisechin of he bast

37 Calif. L. Rev. 341, 346 (1949).

ae.

not en cheat . or: better: mains

urban renewal pubic housing or new building coves."

393 U.S. at 391. (Emphasis. added). ait &

The ahpslecty sizoaned teas i-onnd to nbaNiad

Jy identical to the class deiined by this Court in Hunt-

er—all who seek to regulate the real estate market in

their favor. The only difference is the interest. of the

people affected by the hurdle of an automatic referen-

dum.. Instead of burdening those who seek open

housing legislation as in Hunter, Article XXXIV burdens

those who seek to benefit from low rént public housing

poi tagaaiee Wo seals St 8 SRO eae

perce OF racial MOE 5 * abies

' Appellants urge. that the similarly situated on

should be defined as all who would benefit from public

housing and that, ‘because all who are eligible for pub-

lic housing—low income families—are treated ‘alike,

there is no denial of equal protection. To limit the simn-

ilarly situated group to the narrow subject of ‘the chal-

lengéd legislation, as appellants urge, would strip the

equal protection clause of its meaning. Adoption of ap-

pellants’ approach would mean, for example, that- all

legislation: designed to benefit the poor could’ con-

stitutionally. be subjected to an automatic: referenduni

because all the poor would be treated alike—only the

poor would be similarly situated. Under appellants’

theory a constitutional amendment or a state statute

could require a majority vote of the people before any

welfare legislation would become effective.

» Ifvappellanty’. argument is sound, this Court should

have limited the similarly situated class in Hunter to all

who « benefit: from. open ‘housing. legislation—racial _

minorities. The Court in Hunter quite properly reached

a different conclusion. The policy adopted in Hunter —

to define a class in terms of the general subject matter

‘Even if, as Appeliants Urge, the Class is Limited to Those

Who Would Bonet From All Types of Public Housing

Constrected or Acquired by the State. F

The appellants have asserted that California treats

all kinds of public housing alike and that the only kind

of housing a governmental agency in California can

construct, other than housing to which Article XXXIV

applies, is housing for state officials and university

personnel (Appellant Shaffer’s Brief, p. 44; Appellant

City Council’s Brief, p. 13). This assertion is in error.

Although it was stipulated that the only public hous-

ing currently in existence in California is low cost pub-

lic housing, there was no stipulation that the latter is

the only kind of public housing that can be developed

in California.

Under present California law, a Renewal Area Agency

can be formed by a local governing body to issue bonds

for the purpose of developing urban housing, expressly

including construction of “low income, middle income

and normal market housing.” (Normal market housing

is defined as housing for persons other than those

of low and middle income). California Health and

Safety Code, §§ 33701, et seg. While certain approvals

by landowners within the boundaries of the agency are

no further approvals are required to initiate a middle.

ever, such an agency would have to seek voter approval

via the mandatory referendum required by Article

XXXIV for proposed low income housing only.

In addition, California statutory law also authorizes

public housing for agricultural laborers “without re-

gard to whether such persons and families have low in-

come.” California Health and Safety Code, §36051.

Here again, persons: who benefit from publicly assisted

housing can avoid the requirements of Article XXXIV

if, but only if, they are not poor.

Thus, assuming arguendo that appellants’ definition

of the similarly situated class is sound, Article XXXIV

violates the equal protection clause on its face by sing-

ling out for an automatic referendum vote only those

public housing projects designed to benefit the poor.

C. Article XXXIV Treats Similarly Situated People if, 2s the

Court Below Found, the Class is Defined as Ail Who Would

Benefit From Federally Fanded State or Local Projects.

The court below selected as the similarly situated

class all who would benefit from other types of federally

funded local projects. Hundreds of federally funded

local projects are administered through the state or local

communities. Low rent public housing is the only type

of federally funded project in California requiring voter

approval as a prerequisite to receiving federal aid.

Appellant Shaffer claims that the lower court held

that either all or none of the federally funded local

projects must be submitted to an automatic referendum

requirement and that under no circumstances will dif-

ew ee +

—20—

ferent treatment be tolerated. (Appellant Shaffer's Brief,

p. 54). This implication is wrong. The lower court, folk

lowing the teaching of Hunter v. Erickson, 393: US.

at 392, stated that in order to single out one type of

legislation designed to benefit a particular class of

people and subject that legislation to a special hurdle of

‘requiring voter approval, there must be a showing of

a compelling state interest to justify this different treat-

ment (A. 176-177).

Moreover, the burden is on appellants to demon-

strate that the interests of the local community in low

rent public housing are so substantially different from

all other types of federally funded: local projects as to

justify the automatic referendum requirement. Shapiro

v. Thompson, 394 U.S. 618 (1969)..

D. Article XXXIV Treats Similarly Situated People Dissimilarly

if the Class is Defined as All Who Benefit From Federal

Financial Assistance to Housing.

Another arguable definition of the similarly situated

class would include all who benefit from federal as-

sistance to housing. Adopting this definition leaves un-

changed the discriminatory impact of Article XXXIV.

Federal financial assistance to moderate income hous-

ing is made through insured mortgage programs ad-

ministered by the Federal Housing Authority and the

Veterans Administration, reduced interest rates for

mortgages administered by Federal National Mortgage

Association and federal loan guarantees for private bank

loans and subsidies to sponsors of particular housing

projects to assist them in getting private financing. 12

U.S.C. §(1)(d)(3). None of the beneficiaries of these

federal assistance programs for housing is required to

secure a referendum vote under California law. Article

anne

XXXIV pas. an ner aap mama eee

fined, Article XXXIV is discriminatory and unless that

discrimination can be justified Article XXXIV must fall.

Il. °

Artie XXXIV lg Not Supported By Compeling

A. There Must be a Compelling State Interest in Order to

Uphold Article XXXIV.

Legislation Challange’ 0s Victiling’ tis‘ sandl peotec-

tion clause because it burdens or benefits a particu-

lar class of people requires determination of whether

the classification is justified by a legitimate govern-

mental interest. Douglas v. California, 372 US. 353

(1963). However, in certain instances, the challenged

legislation will be upheld only if in addition there is a

compelling state interest to support treating one class of

people differently from others who are similarly situ-

ated.

The compelling state interest doctrine in turn will be

invoked when the classification in question fits one or

both of two characterizations. First, classifications which

are “constitutionally suspect”, McLaughlin v. Florida,

379 U.S. 184, 194 (1964), or “traditionally disfavored”,

Harper v. Virginia Board of Elections, 383 U. S. 663,

668 (1966), require a compelling state interest for their

salvation. Classifications based on race or wealth are

both “constitutionally suspect”, Hunter v. Erickson, 393

U.S. 385 (1969) ; Griffin v. Illinois, 351 U.S. 12 (1956).

Second, if the interests of the people who fit within this

classification are “fundamental”, the compelling state

—22—

interest teat.is applied regardless of the basis of the classi-

fication. Skinner v. Oklahoma ex rel. Williamson, 316

US. 535 (1942).

Article XXXIV must pass the compelling state interest

test under both standards. The impact of Article XXXIV

falls most heavily on racial minorities; it expressly classi-

_ fies on the basis of wealth.. Both classifications are con-

stitutionally suspect. In addition, Article XXXIV in-

volves decent housing, which is a fundamental interest .

of the poor.

1. The Impact of Article XXXIV Falls Most Heavily

on Racial Minorities.

‘Tine court below stated:

“Although Article XXXIV does not specifical-

ly require a referendum for low income projects

which will be predominantly occupied by Negroes

or other minority groups, the equal protection

clause is violated if a ‘special burden’ is placed on

those groups by the operation of the challenged pro-

vision, if ‘the reality is that the law’s impact falls

on the minority.’ Hunter v. Erickson; supra, at

391.” (A. 174).

“ , .. [Tyhe law’s impact falls on the minority re-

sulting in an impermissible burden which consti-

tutes a substantial and invidious denial of equal

protection.” (A. 175).

This conclusion is amply supported by the record.®

*An uncontroverted affidavit of the senior planner for the

ennfiRiens

Appellant: Shaffer - presents ‘two arguments. in: sup-

port of her contention’ that Article XXXIV does not

discriminate against racial minorities: First, she disputes

the factual findings of the District Court; and secondly

she contends that because there is no express racial

classification in Article XXXIV, it is valid.’ Appellant

Shaffer’s initial argument relies upon statistics outside

the record to dispute the findings of the District: Court

that the impact of Article XXXIV falls most heavily on

racial minorities. Even assuming the propriety ef, such

reliance, these statistics cover only Santa Clara County;

they ignore San Mateo County, state and national

studies. Since a state constitutional amendment is under

attack, the state-wide statistics were and are. relevant

to the court’s determination. Reports and studies cited

in the record consistently document that the urban poor

consist of a disproportionately high percentage of racial

minorities.’

Furthermore, Appellant Shaffer’s presentation of these

statistics is seriously misleading. The statistics cited are

from the Housing Study, Phase I—Public Housing

For City of San Jose, California, Kaiser Engineers

of Oakland, California, Report No. 70-10-R, March,

1970 (hereafter “Kaiser Report”) which appellant has

used in conjunction with other affidavits in an attempt

to show that the ratio of racial minorities to poor

people in Santa Clara County is the same as the ratio

of racial minorities to the overall population (Appel-

lant Shaffer’s Brief, p. 30). Isolated and selected sta-

tistics from different reports and affidavits have been

combined to support appellant’s position, but the. con-

clusions reached by the reports and affidavits taken as

a whole are ignored.

TSee pp. 24-25, infra.

~

ities comprise a disproportionately larger number of

low income households (Kaiser Report, p. V-3). Courts

have noted.as a fact that low income urban families

have a disproportionately high percentage of minority

groups. In Southern Alameda Spanish Speaking Or.

_ ganization y. City of Union City, California, 424 F.

2d 291 (9th Cir. 1970), the court said:

Client ghd teajeinadcd of telait og

portunities in housing, it may well be, as a matter

of law, that it is the responsibility of a city and

its planning officials to see that the city’s plan,

as initiated or as it develops accommodates the

needs of its low-income families, who usually—

if not always—are members of minority groups.”

424 F.2d at 296. (Emphasis added).

National studies on housing needs have consistently

found that a disporportionate percentage of the urban

poor who qualify for public housing is composed of

racial minorities. A majority of the persons living in

low rent public housing which has already been built

are non-white. HUD Report, Statistical Abstract, 1968.

Moreover, a government report cited in the record be-

low estimated that the total non-white occupancy by

individuals of public housing units was approximately

three-fifths to two-thirds. Building The American City,

Report of the National Commission on Urban Progress

to the Congress and to the President of the United

States, Government Printing Office, House Document

91-34, p. 114 (hereafter, “Douglas Report”).*

—25—

If the economic status.of minority groups.in general

is analyzed, the greater: incidence of low income is

clearly evident. In 1967, -41 percent: of the nonwhite

population was poor, compared with only 12: percent

of the white population.. Douglas ‘Report; :p. 45..An-

other housing study:cited in the record below found

that 30% of all urban poor. persons are non-white

and that 61% of. all non-white households in standard

Metropolitan Statistical Areas. had incomes of $4,000

or less, compared with 25%.-of the white housing.

More Than Shelter, Social Needs in Low and Moderate

Income Housing, Report of the National Commission

on Urban Problems to the Congress and to the Presi-

dent of the United States, Government Printing Office,

Research Report No. 8, p, 35 (1968). |

Appellant Shaffer, in her second argument, would

distinguish Article XXXIV from other cases involving

racial classifications on the ground that there is no ex-

press racial classification in the challenged provision.

No such requirement exists. Clever and manipulative

legislative drafting which carefully avoids express ra-

cial classifications will nevertheless fail if,.in fact, the

law’s impact falls most heavily on racial minorities. As

early as 1886, a legislative provision, completely neutral

on its face, was found to violate the equal protection

clause because it was administered to discriminate

against orientals. Yick Wo v. Hopkins, 118 U.S. 356

(1886). “.... [TJhat which cannot be done by express

statutory prohibition cannot be done by indirection.”

Anderson v. Martin, 375 U.S. 399, 404 (1964).

In Reitman v. Mulkey, 387 U.S. 369 (1967), -this

Court invalidated a California constitutional amend-

ment designed to “constitutionalize” the right to dis-

criminate privately in the sale or lease of property by

amendment was carefully drafted in neutral terms and —

made no mention of race, the Court found that its

said it would look to the “ultimate effect” of the chal-

_ lenged provision and not be restricted to its express

terms. The “ultimate effect” of Article XXXIV has

been to defeat a number of low-rent housing projects

that would benefit low income families,’ a dispro-

portionately high percentage of which are composed of

Appellant Shaffer has also attempted to distinguish

Hunter on the same basis, arguing that the legislation in

that case involved an express racial classification. Hunter

gives no hint that the result would have been different

absent an express reference to race. To the contrary,

the Court indicated that the result would have been

the same:

“... [AJithough the law on its face treats Negro

and white, Jew and gentile, in an identical man-

ner, the reality is that the law’s impact falls on the

minority.” 393 U.S. at 391. (Emphasis added).

The policy enunciated in Hunter is clear: Legislation

designed to benefit racial minorities cannot be sub-

jected to the special obstacle of an automatic, manda-

tory referendum. If the impact of the automatic refer-

endum falls most heavily on racial minorities, it is

irrelevant whether the challenged legislative scheme

itself is expressed in terms of race.

°From November, 1950 to June, 1968, 31,071 low-rent units

on ballots across California. Of the p itions

were

subm approval was denied for the construction of 14,997

units (A. 34-37).

2. Article XXXIV Expressly Classifies on the Basis

. of Wealth. a si

Independent of the racial. classification of Article

XXXIV, but equally requiring imposition of the com-

pelling state interest test, Article XXXIV expressly

classifies on the basis of wealth. Persons of low in-

come are defined in Article XXXIV as:

“. . . persons or families who lack the amount

of income which is necessary . . . to enable them,

without financial assistance, ‘to live in decent, safe

and sanitary dwellings, without overcrowding.”

Thus, poor families eligible for low rent public housing

are expressly singled out and burdened by a uniq

automatic referendum requirement before remedial

Edwards v. California, 314 U.S. 160 (1941), Mr. Jus-

tice Jackson in a concurring opinion stated:

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. »« We should say now, and in no uncertain

terms, that a man’s mere property status, without

more, cannot be used by.a state to test, qualify or

limit his rights as a citizen of the United States;

‘Indigence’ in itself is neither a source of rights

nor a basis for denying them. The mere state of

being without funds is a neutral fact—constitv-

tionally an irrelevance, like race, creed or color.”

314 US. at 184-185.

This Court has since consistently ruled that poverty

is no basis for treating people differently. Douglas v.

California, 372 U.S. 353 (1963); Griffin v. Illinois, 351

U.S. 12 (1956). In Harper v. Virginia Board of Elec-

tions, 383 U.S. 663 (1966), the provisions of the Vir-

ginia Constitution requiring payment of a poll tax as a

voting qualification were held violative of the equal

protection clause. The Court stated, “Lines drawn on

the basis of wealth or property, like those of race

(citation omitted), are traditionally disfavored.” 383

U.S. at 668. (Emphasis added).™

This doctrine was reaffirmed last year in McDonald

v. Board of Election Commissioners of Chicago, 394

sateen neta

11Although disagreeing with the majority’s adoption of this

proposi members of the Court have recognized

Get casication fused on wealth roqued showing of

compelling state interest:

arper

v. ¥, vee Be of Elections, 383, U.S. 663, 668 ime 8

which Virginia’s poll tax was struck down.”

Thompson, 394 U.S. at 658-659 (Harlan, J., dissenting).

— 29

US. 802. (1969). Although the classification in Mc-

Donald was ultimately held not based on wealth, the

Court, in determining whether to apply the compelling

state interest standard, noted-that:. . -

“[A] careful examination’ on our part is especial-

ly warranted where lines are drawn on the basis of

wealth or race, Harper v. Virginia Board of Elec-

tions, 383 U.S. 663 (1966), two factors which

would independently render a classification high-

ly suspect and thereby demanding a more exact-

ing judicial scrutiny.” 394 U.S. at 807-809.

Appellee must candidly say that in the cases in

which this Court has applied the compelling state in-

terest test because the classification was based on

wealth, a fundamental interest of the poor was also at

stake. The Court, however, has never stated that such

a fundamental interest is a prerequisite to the compelling

state interest test. However, if it is, the prerequisite

has been ‘met in this case because ‘decent housing is 2

fundamental interest of the poor. |

3. Housing Is a Fundamental Interest of the Pocr.

Although this Court has never had the opportunity

to consider separately for purposes of equal protection

analysis whether housing is a fundamental interest, it

has in the past commented on the importance of hous-

ing. In Block v. Hirsh, 256 U.S. 135, 156 (1921), the

Court said that “housing is a necessity of life.” More

recently the Court in Shapiro v. Thompson, 394 US.

618 (1969), stated that “the very means to subsist—

food, shelter and other necessities of life . . .” is the

matter at stake for the plaintiffs. 394 U.S. at. 627.

Just as adequate housing is necessary for an individual's

development, substandard housing and discrimination in

~—30—

housing are root causes of all the problems facing ghetto

between. inadequate housing and inability to learn, be

tween poor housing and health, and between unsuitable

housing and unsuitable emotional development.”

This Court has defined as fundamental other in-

terests which are no more basic than poor peoples’ need

for decent housing. Interests which have been found

fundamental are inter alia, the right to travel, Shapiro

v. Thompson, 394 U.S. 618 (1969); the right to vote,

Harper v. Virginia Board of Elections, 383 U.S. 663

(1966); the right to political allegiance, Williams vy.

Rhodes, 393 U.S. 23 (1968); the right to procreation,

Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535

(1942); rights with respect to criminal

Griffin v. Illinois, 351 U.S. 12 (1956); and education,

Brown v. Board of Education, 347 U.S. 483 (1954). In

each of these cases, because a fundamental interest of

those who were included in the classification was in

volved, the compelling state interest test was applied.

Surely, therefore, the interest of the poor in securing

“safe and sanitary housing without overcrowding” is

also fundamental.

B. No Compelling State or Local Interests Justify an Automatic

Referendum For Low Rent Public Housing Projects.

Appellants must demonstrate a compelling state in-

terest in‘order to sustain the chalienged legislation be-

cause the impact of Article XXXIV falls most heavily

12Comment, Decent Housing As A Constitutional Right, 42

U.S.C. $1893, Poor People’s Remedy for Deprivation, 14 How.

L.s. 338, 340 (1968); Comment, Tenant Interest Re

Proposal For A National Tenant's Association, 47 Texas L. Rev.

1160, 1172-1173 (n. 61) (1969).

on racial minorities, expressly classifies on ‘the basis. of

wealth and involves the fundamental interest of decent

housing. Separate consideration of each interest’ as-

serted- by appellants shows, that, they have failed to

1. The Fiscal Interests Asserted by Appellants Are

Not Substantial: They Are Less Significant Than

the Fiscal Interests. Underlying Other Types of

Decisions of Legislative Bodies Not Subject to an

Automatic Referendum Requirement.

This Court has never held that an economic interest

constitutes a compelling state interest.'* Moreover, the

economic burden of low rent public housing on local

communities is either insignificant or non-existent.

Appellant Shaffer suggests that Article XXXIV was

approved by the voters to rectify decisions of the Cali-

fornia Supreme Court which eroded the principles of

sound fiscal control imposed upon citie’ counties and

school districts by the provisions of Article XIII, Sec-

tion 40 of the California Constitution (previously Article

XI, Section 18, renumbered without change on June 3,

1970), (Appellant Shaffer’s Brief, p. 34). Article XII,

Section 40, however, relates to long term indebtedness

for which property owners within the particular city,

county or school district will be responsible. Hence, it

is incongruous to argue in the circumstances here that

Article XXXIV was enacted to “rectify the erosion”

18This Court recently held in Shapiro v. Thompson, 394 US.

618 (1969) that saving of state funds is an insufficient interest. to

a classification of nonresident who otherwise

qualify. for welfare payments. “The saving of welfare costs cannot

jastify an otherwise invidious classification.” 394 U.S. at 633.

Court found in Shapiro that the administrative interests

The

asserted by the State failed to meet the traditional rational relation-

much less the required compelling State interest. 394

— 32— 5

(Appellant Shaffer’s Brief, p. 34) whore property owners

should be incurred. See City of Santa Monica v. Grubb

245 Cal. App. 2d 718 (1965); cf. also, Cipriano vy,

City of Houma, 395 U.S. 701 (1969), which discusses

upon whom the financial burden may fall. Financing

of capital improvements by a sale-leaseback or a lease-

leaseback method in which the lessee agency is obligated

to make lease payments from year to year, which

payments may be derived from general property tax

levies, is not subject to an automatic referendum.

cf. California Government Code, §§ 6500, ef seq.;

Dean v. Kuchel, 35 Cal. 2d 444 (1950); Rev. Rul.

63-20, 1963-1 C.B. 24. Additionally, capital projects

may be financed through installment purchase con-

tracts payable from revenues received from the facili-

ty acquired. 7

While as noted above, such financing methods are not

subject to Article XIII, Section 40 of the California

Constitution “because the words of the 1879 Constitu- a)

cul csi

tion did not fit new or ingenious devices” (Appellant

Shaffer’s Brief, p. 34), the:courts have recognized these

new methods and approved them. In addition to

cial agencies and districts which are not subject to

Article XIII, Section 40. Thus it is difficult to follow

the argument that Article XXXIV was enacted as the

means to regain the control lost by the voters under

Housing Authority v. Dockweiler, 14 Cal. 2d 437,

(1939).'* If no local indebtedness is incurred by a hous-

ing authority in the implementation of its program,

whether or not that program is subject to automatic

referendum, the proposed analogy of Article XIII, Sec-

tion 40, is not apt.

The appellants claim that local districts have a sig-

nificant financial commitment because they must agree

to provide municipal services to the project and accept a

percentage of the rental income in lieu of property taxes."*

These, however, are simply not the types of interests

that are as a general rule subjected to a constitutional-

ly mandated vote by residents of the community. Fur-"

thermore, judgments which have a much~greater finan-

cial impact on the voters than the decision to build

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100 percent federally funded low rent public housing —

are not subject to an automatic referendum. These in-

clude, inter alia, decisions to raise property taxes, to

let long term contracts, to enter into financing arrange-

ments with other agencies which involve incurring

long term bonded indebtedness,’* to build new roads,

_ streets and parks and countless other such day-to-day

governmental decisions.

The local unit of government does not agree to pro-

vide the services covered by real and personal property

taxes without charge, but instead agrees to provide

these services in return for a negotiated amount, which

is usually 10 percent of the rent received from the project.

There is no evidence that this amount will be insufficient

to cover the costs of providing public services to the

project. Indeed, if the project is constructed in a slum

clearance area, the local governing body may well col-

lect more revenue from the 10 percent rental income

that it had been collecting from taxes on the property

prior to construction of the project. Furthermore, the

costs of providing services such as fire and police pro-

tection and code enforcement may have been signifi-

cantly higher in the slum area before construction of the

project. Thus, the local community will be financially

benefited rather than burdened by low rent public

housing.

Property tax exemptions are not confined to public

housing projects. The California Constitution and Cali-

fornia Revenue and Taxation Code grant numerous

exemptions from taxation without any requirement that

1¢See Westbrook v. Mihaley, 2 Cal. 3d 765, 791-792 (1970), ia

which the California Supreme Court discusses the various methods

used in incurring long term bonded indebtedness without a vote

: t. > A

=— =

an organization whose property is exempt from taxa-

tion. obtain voter “ere -before — —

i alin eel 0 iy Wels Sa ab

to acquire valuable property, thereby removing it from

local tax roles, without voter approval. Municipal serv-

ices such as fire and police protection are still pro-

vided after this property becomes exempt from taxa-

tion. The revenue loss through these property tax ex-

emptions is greater than the loss through public housing

projects because there is no requirement for payments

in lieu of property taxes as there is for public housing.

The fiscal interests asserted by appellants are so

much less significant than other decisions made by local

governing bodies that do not require a mandatory ref-

erendum that they cannot be considered reasonably

related to the purpose of the referendum. Much less

can they be considered a compelling state interest.

2. The. Long Term Environmental Effects of Public

Housing Upon the Community Are Not so Unique

or Substantially Different to Justify Singling.-Out

This Type of Project for an Automatic Referendum.

Appellants claim that housing projects “of institu-

tional design and mammoth size” strongly influence

the environment of a community and therefore justify

this special vote requirement. (Appellant Sheffer’s

Brief, p. 36). This claim has no factual basis. The

NE.g., —— SS gence Fy ae ai 1-% (b);

Sccputy thekilien tebe’ “dike aupeity. att bra, acho

eines Ga. 4 90n) phnaete end eectasiehy Ser

hospital, scientific or charitable purposes ( Ch aiad ee bans ot

eas oe 203);

that of orphanages (§ 207) and the property of (§ 206).

re ee 5. BES +

bry

ii

large-scale

3

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of too many public housing authorities

“The general tendency in recent years on the

has been to emphasis high-rise

i fail

ue Hy

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1842 U.S.C. § 1415(11).

10)

Poon

now required by HUD guidelines. The Douglas Report

documented the fact most forcefully

Hit

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apartment projects.» This trend’ has been caused

by many factors, notably the refusal.of the dweller

in the suburbs and in the outer and middle-class

sections of the cities to accept public housing.

This, in turn, has driven public housing closer

to the center of the cities where land costs are

high. The high cost.of land and the. continued

immigration of low income families have then led

public housing authorities to construct high rise

buildings in order to get so many housing units

as possible on each acre of land. . . . Suburbanites

and middle-class residents who criticized the huge

projects in the Central city and who, at the same

time, opposed any project in their neighborhoods,

should realize that their refusal to permit the diffu-

sion of public housing is a major factor in creat-

ing the concentration they deplore.” Douglas Re-

port p. 123. (Emphasis added).

Local governing bodies make many decisions that

have a greater environmental impact on the local com-

munities without an automatic referendum. For exam-

ple, zoning legislation has a much greater impact on

the environment because zoning determines whether a

community is to be low density residential, high density

residential, commercial or industrial. Because of the tax

consequences the financial implications of zoning are

also very significant. Other examples which impose com-

parable consequences are city planning and urban

renewal.

Appellants cannot assert that the local community

has a compelling interest in subjecting low rent public

housing projects to an automatic referendum require-

ment when it does not place the same requirement on

other projects or laws which have as much or greater

impact on the community’s environment.

—38—

3, Article. XXXIV. Is Contrary to the Interests of

Local Communities.

Instead of supporting local interests, as appellants

claim, Article XXXIV works against the overall in-

terests of the local communities.

_- Local communities have a strong interest in eradicat-

ing blighted areas. One of the most effective ways to ex-

pedite slum clearance is to relocate families living in

overcrowded, unsanitary housing to low rent. public

The history of Article XXXIV is replete with in-

stances in which the local governing bodies and hous-

ing authorities have determined, after careful evalua-

tion of studies on the kousing needs of the community,

that there is a need for low rent public housing, only

to have their considered judgment reversed. As a conse-

quence, the slum areas remain and poor families con-

tinue to live in the overcrowded unsanitary housing

with all its debilitating effects. Because of Article

XXXIV, the interests of the local community considered

as a whole become secondary to the interests of a

majority living in middle class areas. Article XXXIV.

is a vehicle used by this majority to keep the poor

and racial minorities in the slums.

ee ne

igi

Conclusion.

For the foregoing reasons it is respectfully submitted

that the judgment below holding Article XXXIV of the

California Constitution violative of the equal protection

clause of the Fourteenth Amendment should be affirmed.

WARREN CHRISTOPHER,

DONALD M. WESSLING,

611 West Sixth Street,

Los Angeles, Calif. 90017,

Attorneys for Appellee Housing

Authority of the City of San

Jose.

Of Counsel:

O’MELVENY & MYERs,

DONALD R. HODGMAN,

JouN R. PHILLIPs,

A. ROBERT PISANO,

STEPHEN J. STERN,

611 West Sixth Street,

Los Angeles, Calif. 90017.

October 26, 1970