Three Briefs on Proposition 14 in the California Supreme Court

    CALIFORNIA COMMISSION ON LAW AND SOCIAL ACTION

Law Commentary

T H R E E  B R I E F S  O N  P R O P O S IT IO N  14

in the
C A L I F O R N I A  S U P R E M E  C O U R T

1. THE C.L.S.A. “ MASTER BRIEF’ ’

2. THE SUPPLEMENTAL BRIEF IN THOMAS v, GOULIAS 
(INCLUDING THE EARL RAAB AFFIDAVIT)

3. THE NAACP LEGAL DEFENSE FUND BRIEF

Publishes by  the CALIFORN IA COMMISSION ON L A W  AND SOCIAL ACTION o f the 
A M ERICAN  JEW ISH  CONGRESS

Y ou 3 E p h r a im  M argolin , Editor Summer 1965

Los Angeles Office:
590 N. Vermont,
Los Angeles, California.

San Francisco Office:
40 First Street,
San Francisco, California,



INTRODUCTION
In the Spring of 1964 when Proposition 14 was first brought to onr 

attention,, members of the San Francisco Commission on Law and Social 
Action initiated a series of meetings to discuss both the legal and the 
social-action problems inherent in this proposition. Most of us became 
active in the effort to fight it at the Polls. A  short brief in Lewis vs. 
Jordan, Sac. 7549, was filed on our behalf in the Supreme Court by 
Warren Saltzman and Robert Laws, but the brief was limited to pro­
cedural matters and did not undertake coverage of substantive con­
stitutional issues.

Gradually, our group of attorneys, both in private practice and 
from the University of California in Berkeley, grew to 20 or more. 
Members of the American Civil Liberties Union, St. Thomas More 
Society, and the NAACP were asked to join with us. More than a 
dozen papers were commissioned from volunteers. In February 1965 
five among us presented our tentative conclusions regarding the con­
stitutionality of Proposition 14 at a special conference sponsored by 
the National Committee Against Discrimination in Housing in coopera­
tion with the University of California in Berkeley. This conference 
climaxed a series of meetings in San Francisco and Los Angeles, in 
which efforts were made to correlate legal work 'against the Proposition. 
By February 1965 a number of us became attorneys of record in several 
actions in which Proposition 14 was challenged and a draft of our 
main brief wais ready for submission to a large number of sponsoring 
organizations who indicated willingness1 to sign a “ Master Brief” prepared 
by us. We are grateful to these organizations for their many comments 
and suggestions and we wish to extend our special gratitude to Joseph 
Robison of the C.L.S.A., to Sol Rabkin of the A.D.L., and to the National 
Committee Against Discrimination in Housing.

In this issue of Law Commentary, we bring together the totality 
of our legal effort regarding Proposition 14. We reprint the following 
three briefs:

(1) The “ Master Brief” , partially financed by the National Com­
mittee Against Discrimination in Housing, and partially by voluntary 
contributions of a number of its California signatories.

(2) A  brief financed by the American Civil Liberties Union of 
Northern California, which supplements the “ Master Brief” and repro­
duces a remarkable trial court affidavit by Earl David Raab.

(3) A  brief financed by the NAACP Legal Defense Fund and 
limited to the Supremacy Clause argument.

We do not wish to give the impression that the three briefs reprinted 
herein are the only briefs filed in the litigation concerning Proposition 
14. Briefs of Redevelopment Agencies, the American Civil Liberties 
Union of Southern California, Herman F. Selvin, Joseph A. Ball, 
Nathaniel Colley and others are all of major importance in this litiga­
tion. Under the covers of Law Commentary, however, we brought 
together only those briefs for which we take a measure of credit.

We regret that the lack of space precludes the reprinting of any 
other papers, memoranda or drafts of other work performed by the 
C.L.S.A. in California over the last year.

The Editor



L . A . N os. 28360, 28422 and 28449  
S. F . N os. 22019, 22020 and 22017  
Sac. N o. 7657

In the Supreme Court
OF THE

State of California

L. A. No. 28360
LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,

vs.
NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

AMICI CURIAE BRIEF OF
Philip Adams, Beverly Axelrod, Richard A. Bancroft, Albert M. 
Bendich, Herbert A. Bernhard, Lester Bise, Harry Bremond, 
Ralph Evan Brown, Frank F. Chuman, J. K. Choy, Reynold H. 
Colvin, Jay Darwin, John F. Dunlap, Maurice Engel, Basil 
Feinberg, Andrew H. Field, Thomas L. Fike, Maxwell E. Green­
berg, Allen J. Greenberg, Joseph R. Grodin, Dorothy E. Handy, 
James K. Haynes, Bruce I. Hochman, Robert Holcomb, Harold 
W . Horowitz, Norman C. Howard, Neil F. Horton, Tevis Jacobs, 
Mathew M. Kearny, Herbert A. Leland, Jack Levine, David J. 
Levy, Arthur L. Littleworth, Julian W . Mack II, Douglas 
Maloney, James McDonald, Lloyd E. McMurray, Richard W . 
Petherbridge, James C. Powers, Ralph H. Prince, Gerald Rosen, 
Warren H. Saltzman, Edward Stern, Robert E. Sullivan, John 
E. Thorne, Solomon Zeltzer, David Ziskind

Of Counsel-.
JOSEPH B. ROBISON 
ROBERT M. O’NEIL 
EPHRAIM MARGOLIN 

683 McAllister Street 
San Francisco, California 94102

By:
DUANE B. BEESON 

Russ Building
San Francisco, California 94104 

SEYMOUR FARBER 
593 Market Street,
San Francisco, California 94105 

ROBERT H. LAWS, JR.
646 Van Ness Avenue 
San Francisco, California 94102 

HOWARD NEMEROVSin 
111 Sutter Street 
San Francisco, California 94104 

Attorneys for Amici Curiae

(Continued on Inside Cover)



L, A. No. 28422
WILFRED J. PRENDERGAST and CAROL A EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Gross-Defendants and Respondents, 

vs.
CLARENCE SNYDER, Cross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

L. A. No. 28449
THOMAS ROY PEYTON, M.D., , Plaintiff and Appellant,

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

CLIFTON HILL, 

CRAWFORD MILLER,

Sac. No. 7657
vs.

Plaintiff and Appellant, 

Defendant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Gallagher, Judge

S. P. No. 22019
DORIS R. THOMAS, Plaintiff wnd Appellant,

vs.
G. E. GOULIAS, et al., Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge .

S. F. No. 22020
JOYCE GROGAN, Plaintiff and Appellant,

vs.
ERICH MEYER, Defendant and Respondent.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
vs.

KARL BUCKMAN, Chairman of the Redevelopment Agency of the City of 
Fresno, Respondent.

Petition for Writ of Mandate



Subject index

Interest of Amici ..........................................................................  3
I. Introductory statement ...................................................... 8

II. Discrimination in housing against members of minority 
groups exists on a substantial scale in California and 
has widespread harmful effects ...........................................  10
A. The existence of racial discrimination in housing in

California...................      10
B. The harmful effects of residential segregation in

California ....................................    13
III. The development of California law in the field of racial 

discrimination and the impact of Article I, Section 26, 
of the Constitution .............    21
A. The legislative and judicial response to discrimina­

tory practices ................................. - ......................... • 21
1. California legislation prior to 1959 ....................  21
2. 1959 legislation—the Unruh, Hawkins and Pair

Employment Practice Acts ............................. . • 24
3. Legislation subsequent to 1959 .............................  .26
4. Development of California antidiscrimination

common la w ..................................................    28
B. The impact of Article I, Section 26, on California

law ................................    32
1. The effect on the Branford Act .........................  32
2. The effect on the Unruh A c t ...............................  33
3. The effect on the development of California

common law ........................................................... 34
4. The effect on future legislative regulation.........  35

Page



S u bject  I ndex

IV. Article I, Section 26 constitutes discriminatory state 
action within the reach of the Fourteenth Amendment 
of the United States Constitution ...................................  36
A. The Fourteenth Amendment prohibits state action

in furtherance of racial discrimination in the sale 
and rental of real property ........... ................. . 36
1. Private discrimination on state-owned property 38
2. Private discrimination in the operation of prop­

erty under state-assistance programs ............ 39
3. Private discrimination in the management of

property utilized in a quasi-public function . . .  41
4. Private discrimination where the state has dele­

gated a governmental function .........................  41
5. Private discrimination authorized, sanctioned or

encouraged by the state ............................. .. . . .  43
B. There is sufficient state encouragement of racial

discrimination under Article I, Section 26 to bring 
it within the proscription of the Fourteenth Amend­
ment .............     47

C. The Fourteenth Amendment prohibits California
from disabling itself from dealing with matters of 
fundamental government concern ...........................  54

V. Article I, Section 26 constitutes an unconstitutional im­
pairment of the right to petition the government for 
redress of grievances ........................................   58

VI. The constitutional defects in Article I, Section 26
render it completely void ................................................. 62

Conclusion ....................................    65

ii

Page



Table of Authorities Cited

Cases Pages
Abstract Investment Co. v. Hutchison, 204 CaI.App.2d 242

(1962)  45,49
Anderson v. Martin, 375 U.S. 399 (1964)............................. 45,49
Aptheker v. Secretary of State, 12 L.ed. 2d 992 (1 9 6 4 ).... 64

Baldwin v. Morgan, 287 F.2d 750 (C.A. 5, 1961).................. 45
Barrows v. Jackson, 346 U.S. 249 (1953)......................... 45,48,51
Bell v. Maryland, 378 U.S. 226 (1946)...................................  43
Bowman v. Birmingham Transit Company, 280 F.2d 531

(C.A. 5, 1960) .........................................................................47,49
Brotherhood of R. Trainmen v. Virginia, 377 U.S. 1 (1964) 58, 59
Buchanan v. Warley, 245 U.S. 60 (1917)...............................  36
Burks v. Poppy Construction Co., 57 Cal.2d 463 (1962)

.......................  31,33,35,56
Burton v. Wilmington Parking Authority, 365 U.S. 715 

(1961)   38,40,46,47

Carlson v. California, 310 U.S. 106 (1940).............................  64
City of Greensborough v, Simpkins, 246 F.2d 425 (C.A. 4,

1957)     39
Civil Rights Cases, 109 U.S. 3 (1883)..............................42,43,58

Darlington v. Plumber, 240 F.2d 922 (C.A. 5, 1956), cert.
denied, 353 U.S. 924................................................................

Department of Conservation & Dev. v. Tate, 231 F.2d 615
(C.A. 4, 1955), cert, denied, 352 U.S. 838.........................

Dorsey v. Styvesant Town Corp., 299 N.Y. 512 (1949), cert, 
denied, 339 U.S. 981..............................................................

Eastern R. Conf. v. Noerr Motors, 365 U.S. 127 (1961). , . .  58
Eaton v. Grubbs, 329 F.2d 710 (C.A. 4, 1964)......................  40
Eisentrager v. Forrestal, 174 F.2d 961 (1949), reversed on 

other grounds, 339 U.S. 763 (1950)............... .....................  57

Gomillion v. Lightfoot, 364 U.S. 339 (1960)........................  53
Griffin v. School Board, 377 U.S. 218 (1964)........................  53
Guinn v. United States, 238 U.S. 347 (1915)........................  53

Home Bldg. & Loan Assoc, v. Blaisdell, 290 U.S. 398 (1934) 57
Hurd v. Hodge, 334 U.S. 24 (1948)........................................ 44

Jackson v. Pasadena City School District, 59 Cal.2d 876 
(1963) ..................................................................................... 56

39

39

40



IV T able of A uthorities, Cited

James v. Marinship Corp., 25.Cal.2d 721 (1944)..................28,41
Johnson,v. Levitt & Son, 131 F.Supp. 114 (E.D. Pa. 1955) 40

Pages

Lane v. Wilson, 307 U.S. 268 (1 9 3 9 )................................. .. 53
Lynch v. United States, 189 F.2d 476 (C.A. 5, 1951)........ .. 42

Marsh v. Alabama, 326 U.S. 501 (1946).................................  41
McCabe v. Atchison T. & S. F. By., 235 U.S. 151 (1914).. .46, 49 
Ming v. Horgan (Cal. Super. Ct. 1958), 3 Race Relations 

L. Repts. 693 .........................................................................  40

Nixon v. Condon, 286 U.S. 73 (1932).....................................42,49

Orloff v. Los Angeles Turf Club, 30 Cal.2d 734 (1 9 5 1 ).... 31

Piluso v. Spenser, 36 Cal.App. 416 (1918).............................  31

Reuter v. Board of Supervisors, 220 Cal. 314 (1 9 3 4 ) . . . . . .  52

San Mateo v. Railroad Commission, 9 Cal.2d 1 .....................  52
Schwartz-Torran.ce Investment Corp. v. Bakery Local 31, 61

Cal.2d 766 ( 1 9 6 4 ) . . . . . . . . ..................................................... 41
Second Slaughter House Case, Butchers’ Union Co. v. Cres­

cent City Co., I l l  U.S. 746 (1883)................................. 57, 58, 61
Shelley v. Kraemer, 334 U.S. 1 (1948)................. 37,43,44,46,48
Simpkins v. Moses II. Cohn Memorial Hospital, 323 F.2d

959 (C.A. 4, 1963), cert, denied, 376 U.S. 938.................  39
Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1872)..........58, 59
Smith v. Allwright, 321 U.S. 649 (1944),.................................  42
Smith v. California, 361 U.S. 147 (1959).............................  63
Smith v. Holiday Inns of America, Inc., 336 F.2d 630 (C.A.

6, 1964) ..................................................................................  40
State Compensation Fund v. Riley, 9 Cal.2d 126 (1 9 3 7 ).... 52

Terry v. Adams, 345 U.S. 461 (1953).....................................  42
Testa v. Katt, 330 U.S. 386 (1947).........................................  57
Thomas v. Goulias, No. SF 22019............................................. 12
Thornhill v. Alabama, 310 U.S. 88 (1940).............................  64

United States v. Cruikshank, 92 U.S. 542 (1876).................  59
United States v. Hall, 26 Fed.Cas. 79 (C.C.S.D. Ala. 1871) 43

Williams v. Boilermakers, 27 Cal.2d 586 (1946)...................  30
Wright v. Rockefeller, 376 U.S. 52 (1964).............................  53

Yakus v. United States, 321 U.S. 414 (1944)...........................  57



Codes
Civil Code: Page

Section 51 .............................   24
Sections 51-54 ......................................................................  21
Section 52 ........................................................................... 24
Section 53 ........    27
Section 69 ............................   27
Section 782 .........................................................................  27

Education Code:
Section 8451 ........................................................................  22
Section 8452 ........................................................................  22
Section 13274 ......................................................................  23

; Section 13732 ..............................................    22

Election Code:
Section 223 ..........................................................................  27

Government Code:
Section 8400 .............    28
Section 10702 ..................................................................  22
Section 19704 ......................................................................  22

Health and Safety Code:
Section 33039 ......................................................................  27
Section 33050 ..........................................   26
Sections 35700-35741 ........................................................... 25
Sections 35700-35744 .................    28

Insurance Code:
Section 11628 ..................................................    23

Labor Code:
Section 177.6 ........................................................................  23
Sections 1410-1432 ..............................................................  25
Section 1412 ........................................................................  26
Section 1735 ...................................  22

Military and Veterans Code:
Section 130 .....................    23

Penal Code:
Section 365 ........................... ........... .............................. • • 21

Welfare and Institutions Code:
Section 19 ............................................................................ 22

Table op A uthorities Cited v



Constitutions
California Constitution: Pages

Article I, Section 10 ........................................................... 60
Ai’ticle I, Section 26 ......................................................... passim

United States Constitution, 14th Amendment ......................
........................................................ 8,10, 36, 38, 42, 43, 54, 55, 58, 60

Statutes
Cal. Stats. 1893, c. 185, p. 220 ................................................  21

Cal. Stats. 1919, c. 210, p. 309 ................................................  21

Cal. Stats. 1923, c. 235, p. 485 ...............  21

Cal. Stats. 1925, c. 276, p. 460, Sec. 2 ......................................  22

Cal. Stats. 1935, c. 618, pp. 1748-1749, Sec. 5.798 as amended 22

Cal. Stats. 1937, c. 753, p. 2110, Sec. 201..................................  22

Cal. Stats. 1939, c. 643, p. 2068, Sec. 1 .............................  22

Cal. Stats. 1941, c. 243, p. 1308, Sec. 1 ..................................... 22

Cal. Stats. 1941, c. 1192, p. 3005, Sec. 1 ........................  23

Cal. Stats. 1947, c. 161, p. 690, Sec. 1 ..............................  22

Cal. Stats. 1949, c. 948, p. 1720, Sec. 1 .....................   23

Cal. Stats. 1949, c. 1578, p. 2826 ...................    23

Cal. Stats. 1951, c. 1718, p. 4038, Sec. 2 ..................................  22

Cal. Stats. 1955, c. 125, p. 588, Sec. 1 .............................. 23

Cal. Stats. 1955, c. 1910, p. 3519 ...........  23

Cal. Stats. 1959, c. 121, p. 1999, Sec. 1.......................  25

Cal. Stats. 1959, c. 1102, p. 3182, Sec. 23.................................. 26

Cal. Stats. 1959, c. 1681, pp. 4074-4077 ....................................  25

Cal. Stats. 1961, c. 554, p. 1665, Sec, 2 ...............................    27

Cal. Stats. 1961, c. 1078, p. 2810, Sec. 1   27

Cal. Stats. 1961, c. 1877, p. 3976, Sec. 1 ..................................  27

vi Table oe A uthorities Cited



Table of A uthorities Cited

Cal. Stats. 1961, e. 1898, p. 4008, Sec. 1 ..................................  27

Cal. Stats. 1961, c. 2116, p. 4377, Sec. 1 ........................   27

Cal. Stats. 1963, c. 1853, p. 3823, Sec. 2 ..................................  28

Attorney General’s Opinions
9 Ops. Cal. At.ty. Gen. 271, 274 ................................................. 31

Texts
Abrams, Forbidden Neighbors, pp. 70-81, 137-149, 150-190, 

227-243 (1955) ........................................................................  11

A New Look at State Action, Equal Protection and “ Pri­
vate” Racial Discrimination, 59 Mich. L. Rev. 993 (1961) 38

Brown, The Right to Petition, 8 U.C.L.A. L. Rev. (1961) :
Page 729 ...................................     59,60
Page 732 ....................................   59

Clark, Prejudice and Your Child (1955), pp. 39-40 ............ 15

Comment, The Impact of Shelley v. Kraemer on the State 
Action Concept, 44 Cal. L. Rev. 718 (1956).......................  38

Comment, The Rumford Fair Housing Act Reviewed, 37 
U.S.C. L. Rev. 427, 430, 432 (1964).....................................  21

Frank & Monro, The Original Understanding of “ Equal 
Protection of the Laws,” 50 Colum, L. Rev. 131 (1950).. 43

Groner & Helfeld, Race Discrimination in Housing, 57 Yale 
L. J. 426, 428-429 (1948) ..................................................... 17

Horowitz, California Equal Rights Statute, 33 LT.S.C. L. Rev. 
260-264 (1960) ............................... ...............................••••• 21

Horowitz, The Misleading Search for “ State Action” under 
the Fourteenth Amendment, 37 Cal. L. Rev. 208 (1957) 38

Kaplan, Discrimination in California Housing: The Need for 
Additional Legislaiton, 50 Cal. L. Rev. 635, 636 (1962).. 21

vii

Pages



Table of A uthorities Cited

Karst & Van Alstyne, Sit-Ins and State Action, 14 Stan. L.
Rev. 762 (1962) ......................................................................  38

Klein, The California Equal Rights Statutes in Practice, 10 
Stanford L. Rev. (1958) :

Pages 253, 255-259 ............................................................... 21,31
Pages 270-272 ......................................................................  31

Lewis, The Meaning of State Action, 60 Colum. L. Rev. 1083 
(1960) ...................................................................................... 38

Maslaw, De Facto Public School Segregation, 6 Vill. L. Rev.
353, 354-355 (1961) ..............................................    19

McEntire, Residence and Race (1960), pp. 32-67, 61-66 . . . .  12

Miller, An Affirmative Thrust to Due Process of Law, 30 
Geo. Wash. L. Rev. 399 (1962)................................................ 43

Myrdal, An American Dilemma. (1944) :
Page 6 1 8 ................................................................................  19
Pages 618-627 .........................   11

Note, Civil Rights: Extent of California Statute and Reme­
dies Available for Its Enforcement, 30 Cal. L. Rev. 563-565 
(1942) ........................................................................................ 21

Peters, Civil Rights and State Non-Action, 34 Notre Dame 
Law 303 (1959) ......................................................................  43

Shanks, “ State Action” and the Girard Estate Case, 105 U.
Pa. L. Rev. 213 (1956) .............................     38

St. Antoine, Color Blindness But Not Myopia ....................... 38

Williams, The Twilight of State Action, 41 Tex. L. R. 347
(1963) .........................................................................   38

Weaver, The Negro Ghetto (1948) ...........................................  11

viii

Pages



Table of A uthorities Cited ix

Miscellaneous Pasfe
Editorial, Vol. XLIV, No. 2, California Real Estate Maga­

zine (Dec. 1963) ....................................................................  52

N.Y. State Commission Against Discrimination, In Search of 
Housing, A Study of Experiences of Negro Professional 
and Technical Personnel in New York State (1959).........  19

Report of Commission on Race and Housing, Where Shall 
We Live? (1958) :

Pages 1-10 ........................................    11
Page 3 ..................................................................................  13
Pages 35-36 ..........................................................................  19
Pages 5, 36-38 ......................................................................  17
Page 36 ................................................................................  14
Page 40 ................................................................................  18

Report of the President’s Committee on Civil Rights, To Se­
cure These Rights (1947) :

Pages 67-70 ..........................................................................  11
Pages 82-87 ..........................................................................  20

Report of U.S. Commission on Civil Rights, Book 4, Hous­
ing, p. 1 (1961) ......................................................................  11

Report of U.S. Commission on Civil Rights (1959) :
Pages 336-374 ......................................................................  11
Page 3 9 1 ................................................................................  15
Page 392 ................................................................................  17
Page 545 ................................................................................  19

U.S. Commission on Civil Rights, “ 50 States Report” (1961) :
Pages 43-46 ..........................................................................  11
Page 45 ................................................................   18

U.S. Commission on Race and Housing, 1959 Report, p. 278 14



L. A. Nos. 28360, 28422 and 28449 
S. F. Nos. 22019, 22020 and 22017 
Sac. No. 7657

In the Supreme Court
OF THE

State of California

L. A. No. 28360
LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,

vs,
NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

L. A. No. 28422
WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Cross-Defendants and Respondents,

vs.
CLARENCE SNYDER, Cross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

L. A. No. 28449 
THOMAS ROY PEYTON, M.D., Plaintiff and Appellant,

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

CLIFTON HILL, 

CRAWFORD MILLER,

Sac. No. 7657
vs.

Plaintiff and Appellant, 

Defendant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Gallagher, Judge



2

DORIS R. THOMAS,

G. E. GOULIAS, et al.,

S. P. No. 22019
vs.

Plaintiff and Appellant, 

Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

JOYCE GROGAN, 

ERICH MEYER,

S. !•’. No. 22020
V S i

Plaintiff and Appellant, 

Defendant and Respondent.

.av. i ; . ̂ P-peal,, from the Municipal. Court of the 
City and County of San Francisco

''Hl'OTiorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
■ vs. . . . .

KA.B^,BUCKM4N, Chairman of the Redevelopment Agency of the City of 
Fresno, Respondent.

: Petition for Writ of Mandate

AMICI CURIAE BRIEF OF
Philip Adams, Beverly Axelrod, Richard A. Bancroft, Albert M. 
Bendich, Herbert A. Bernhard, Lester Bise, Harry Bremond, 
Ralph Evan Brown, Frank F. Chuman, J. K. Choy, Reynold H, 
Golvin, Jay Darwin, John F. Dunlap, Maurice Engel, Basil 
Feinberg, Andrew H. Field, Thomas L. Fike, Maxwell E. Green­
berg, Allen J. Greenberg, Joseph R. Grodin, Dorothy E. Handy, 
James K. Haynes, Bruce I. Hochman, Robert Holcomb, Harold 
W . Horowitz, Norman C. Howard, Neil F. Horton, Tevis Jacobs, 
Mathew M. Kearny, Herbert A. Leland, Jack Levine, David J. 
Levy, Arthur L. Littleworth, Julian W . Mack II, Douglas 
Maloney, James McDonald, Lloyd E. McMurray, Richard W . 
Eetherbridge, James C, Powers, Ralph H. Prince, Gerald Rosen, 
Warren H. Saltzman, Edward Stern, Robert E. Sullivan, John 
E, Thome, Solomon Zeltzer, David Ziskind



3

INTEREST OF AMICI

The California attorneys submitting this brief as 
amici curiae . represent various organizations con­
cerned with discrimination based on race, religion or 
national origin. These organizations include:

1. National Committee Against Discrimination in 
Housing and its Affiliated Organizations:

Amalgamated Clothing Workers of America, 
AFL-CIO

American Baptist Convention, Division of Chris­
tian Social Concern

American Civil Liberties Union 
American Council on Human Rights 
American Ethical Union 
American Friends Service Committee 
American Jewish Committee 
American Jewish Congress 
American Newspaper Guild, AFL-CIO 
American Veterans Committee 
Americans for Democratic Action 
Anti-Defamation League of B ’nai B ’rith 
Brotherhood of Sleeping Car Porters,

AFL-CIO/CLC
Commonwealth of Puerto Rico, Department of 

Labor, Migration Division
Congress of Racial Equality (CORE)
Cooperative League of the USA 
Friendship House
Industrial Union Department, AFL-CIO



4

International Ladies’ Garment Workers Union, 
AFL-CIO

International Union of Electrical, Radio and Ma­
chine Workers, APL-CIO

Jewish Labor Committee
League for Industrial Democracy
The Methodist Church, Woman’s Division of 

Christian Service
National Association for the Advancement of Col­

ored People (NAACP)
National Association of Negro Business and Pro­

fessional Women’s Clubs
National Catholic Conference for Interracial Jus­

tice
National Coimcil of Churches of Christ, Depart­
ment of Ethical and Cultural Relations
National Council of Jewish Women
National Council of Negro Women
National Urban League
Protestant Episcopal Church, Department of 

Christian Social Relations
Union of American Hebrew Congregations, Com­

mission on Social Action
Unitarian Fellowship for Social Justice
United Auto Workers of America, APL-CIO
United Church of Christ, Council for Social Ac­

tion, and Race Relations Department, Board of 
Homeland Ministries

United Presbyterian Church, Board of Christian 
Education

United Steelworkers of America, APL-CIO



5

2. and tlie following California organizations:
The American Federation of Teachers, AFL-CIO, 

California Division
American Friends Service Committee, California 

Offices
American Jewish Congress, California Divisions
American Jewish Committee, Los Angeles and 

San Francisco Chapters
Anti-Defamation League of B ’nai B ’rith, Central 

Pacific Region
Anti-Defamation League of B ’nai B ’rith, Pacific 

Southwest Region
Bay Area Urban League, Inc.
California Committee for Fair Practices
California League for American Indians
Catholic Inter-Racial Councils and Human Rela­

tions Councils of California
City of San Bernardino
Community Relations Committee, Jewish Welfare 

Federation Council of Greater Los Angeles
C.O.R.E. (Western Region)
East Bay Conference on Religion and Race
Episcopal Diocese of California
Fair Housing Council of San Mateo County
First Unitarian Church of San Francisco
Friends Committee on Legislation of Southern 

California
Golden Gate Chapter, National Association of 

Social Workers



6

Hitman Relations Council of Riverside, Execu­
tive Board

Human Relations Commission of San Bernardino
Interfaith Social Action Council of San Bernar­

dino
Japanese American Citizens League
Jewish Community Relations Council of San 

Francisco, the Peninsula and Marin
Jewish Community Relations Council for Ala­

meda and Contra Costa Counties 
Jewish Community Relations Council of San Jose 
Jewish Labor Committee
Jewish W ar Veterans, California Department

Los Angeles Cloak Joint Board, ILGW U
Marin Committee for Fair Play
Marin Conference on Religion and Race
Marin County Human Rights Commission
NAACP, San Francisco Branch
Rapa County Human Relations Council
Orinda Council for Civic Unity
Palo Alto Fair Play Council
Pasadena Young Women’s Christian Association
Pittsburg Human Relations Commission
San Bernardino Leadership Council
San Francisco Conference on Religion and Race
San Francisco Friends of Student Non-Violent 

Coordinating Committee
San Francisco Greater Chinatown Community 

Service Association



7

San Francisco Young Women’s Christian Asso­
ciation

San Jose Human Relations Commission
Social Action Committee, First Congregational 

Church, Riverside
Union of American Hebrew Congregations
Universalist Unitarian Church of Riverside, 

Board of Trustees

The foregoing organizations are committed to the 
proposition that discrimination based on race, religion 
or national origin is a major evil, both nationally and 
in California, and that the effects of such discrimina­
tion are particularly invidious in the field of housing. 
The organizations have long been actively concerned 
with the malignant growth and persistence of racial 
ghettos in the residential areas of California and the 
United States, and their pernicious social, educational 
and economic consequences.

The interest of Amici in these cases is limited to 
the question of the validity under the federal consti­
tution of Article I, Section 26, of the California con­
stitution, which became law following enactment as 
Initiative Proposition No. 14 in the general election 
of November 3, 1964.1 It is the position of Amici that 
the new constitutional amendment encourages, sanc­
tions, and unmistakeably places the state’s imprimatur 
on discriminations based on race, religion and na­
tional origin in the transfer of real property interests;

irThe briefs of the parties before the Court present full state­
ments of the facts and proceedings below which in our judgment 
necessarily present the broad constitutional issues.



8

and that the amendment arbitrarily precludes any 
exercise of state power to redress private discrimina­
tion in the sale and leasing of real property. Amici 
submit that on these grounds Article I, Section 26, of 
the California Constitution violates the Fourteenth 
Amendment of the United States Constitution, and is 
therefore void.

I. INTRODUCTORY STATEMENT.

The gravamen of the newly enacted Article I, Sec­
tion 26, of the California Constitution is contained 
in the following clause:

“Neither the State nor any subdivision or agency 
thereof shall deny, limit or abridge, directly or 
indirectly, 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 discretion, chooses.”

The language is, on its face, general and unqualified. 
No effort is made to catalogue the considerations 
which the amendment would immunize against state 
regulation or prohibition in a landowner’s deter­
mination to withhold property from particular in­
dividuals. Rather, by vesting “ absolute discretion”  in 
the property owner with respect to the disposition of 
his property, the amendment attempts to sweep within 
the pale of state constitutional protection both rea­
sonable and unreasonable motivations, ethical and 
unethical considerations, licit and illicit reasons for 
selecting and rejecting willing buyers and renters.



9

The major impact of the amendment falls only 
upon members of minority groups. A  constitutional 
amendment was not needed to permit property owners 
to withhold a leasehold from lessees with pets, to 
withhold property in a senior citizens’ community 
from purchasers who do not meet an age requirement, 
or to withhold property for any number of considera­
tions under commonly accepted tenets of desirable 
social arid economic behavior. However, in recent 
years the withholding of real property on purely 
racial or religious grounds has been made the occa­
sion for legal redress in California, and there is little 
doubt that Article I, Section 26, was proposed and 
passed for the precise objective of granting and 
guaranteeing the right to discriminate on racial and 
religious grounds in the selling and leasing of real 
property. See infra, pp. 21-32.

The language of the amendment achieves that pur­
pose. Under the “ absolute discretion”  phraseology, a 
Mexican seeking a home for his family in Los Angeles 
may be turned away because of his national origin 
by an owner whose house is on the market; a Japanese 
farmer may be denied farmland in the San Joaquin 
Valley because he is not Caucasian, and a Negro in 
San Francisco may be told that he cannot rent an 
apartment because of the color of his skin. In those 
instances, the amendment undeniably would sanction 
discrimination.

It is the position of Amici that Article I, Section 
26, of the California constitution, by granting the 
protection of law to those who discriminate against



10

minority citizens seeking to acquire property interests, 
by withholding redress of law from those who suffer 
such discrimination, and by arbitrarily precluding the 
effective exercise of state power to regulate discrimi­
nation in the transfer of real property, is in direct 
conflict with the Fourteenth Amendment of the United 
States Constitution. W e develop the reasons which 
compel this conclusion in succeeding portions of the 
brief.

A proper evaluation, however, of the impact of the 
amendment in the area of personal rights covered 
by the Fourteenth Amendment requires initially a 
discussion of the extent of discriminatory practices 
in California and of the present laws which deal with 
those practices.

II. DISCRIMINATION IN HOUSING- AGAINST MEMBERS OF 
MINORITY GROUPS EXISTS ON A SUBSTANTIAL SCALE IN 
CALIFORNIA AND HAS WIDESPREAD HARMFUL EFFECTS.

The ghetto pattern that dominates residential areas 
throughout the United States—and in California—has 
been revealed in every study made of the subject— 
whether by public agencies or by private institutions. 
Its harmful effects are well known.

A. The Existence of Racial Discrimination in Housing1 in Cali­
fornia.

That racial discrimination in housing exists through­
out the United States and in California need not be 
belabored.



11

In 1961, the U.S. Commission on Civil Rights ob­
served :2

In 1959 the Commission found that “ housing 
. . .  seems to be the one commodity in the Ameri­
can market that is not freely available on equal 
terms to everyone who can afford to pay.” Today, 
2 years later, the situation is not noticeably bet­
ter.

Throughout the country large groups of Ameri­
can citizens—mainly Negroes, but other minorities 
too-—are denied an equal opportunity to choose 
where they will. live. Much of the housing market 
is closed to them for reasons unrelated to their 
personal worth or ability to pay. New housing, 
by and large, is available only to whites. And in 
the restricted market that is open to them, Ne- 
groes generally must pay more for equivalent 
housing than do the favored majority. “ The dol­
lar in a dark hand” does not “ have the same 

. purchasing power as a dollar in a white hand.”

And the California Advisory Committee to the U.S.
Commission on Civil Rights has reported:3

. The State of California has a large and increas- 
■, ing Negro population. These people live mainly in 

segregated patterns in the major urban centers 
of the State. In most cases, Negro housing areas

-Keport o f the U. S. Commission on Civil Rights, Book 4, Hous­
ing, p. 1 (1961). See, also, Report of the President’s Committee 
on Civil Rights, To Secure These Bights, pp. 67-70 (1947) ; Myrdal, 
An American Dilemma, pp. 618-27 (1944) ; Weaver, The Negro 
Ghetto (1948); Abrams, Forbidden Neighbors, pp. 70-81, 137-49, 
150-190, 227-243 (1955); Commission on Race and. Housing, 
Where Shall We Live?, pp. 1-10 (1958); Report of the U.S. 
Commission on Civil Rights, pp. 336-374 (1959).

3U. S. Commission on Civil Rights, “ 50 States Report” , pp. 43- 
46 (1961).



12

are considerably less attractive than housing in 
other areas.

* * * * *
As California’s Negro population increases, 

pressure builds up in the great urban ghettos, and 
slowly but perceptibly the segregated areas en­
large. The Committee found that, as a general 
rule, Negro families do not move individually 
throughout the community. They move as a group. 
This, is true in most cases of the relatively high- 
wage Negro professional group. It is practically 
universally true of Negroes in the lower mass 
group.

* * * * *

This Negro housing problem is widespread. 
Negroes encounter discrimination not only where 
houses in subdi visions and in white neighborhoods 
are concerned but also in regard to trailer parks 
and motels. Testimony received by the Committee 
indicated that the trailer-park situation is par­
ticularly acute and that, especially in the southern 
part of the State, few, if any, trailer parks will 
accept Negroes.4

Unquestionably there is an established pattern of 
segregation in housing, and in the sale and rental of 
real estate in California.5

4The existence of housing bias in California’s two principal 
metropolitan areas is further documented in McEntire, Residence 
and Race (I960), in a chapter (pp. 32-67) studying residential 
patterns in 12 large cities representing the major regions of the 
country, including Los Angeles and San, Francisco. See particu­
larly the maps showing racial concentration in those two cities, 
pp. 61-66.

BIn this connection, we refer the Court also to the uncontra­
dicted affidavit of Earl Raab which is part of the record in 
Thomas v. Goulias, No. S F 22019, pending in this Court.



B. The Harmful Effects of Residential Segregation in California.

Because of the pervasive nature of discrimination 
in housing, we have in effect two housing markets, 
one for whites and one for non-whites. Its oppressive 
effects on the direct victims of discrimination and on 
the interests of the state as a whole are readily 
demonstrated.

1. The most obvious price paid by those who are 
discriminated against is a loss of freedom. “ The 
opportunity to compete for the housing of one’s choice 
is crucial to both equality and freedom,”  declares the 
Commission on Race and Housing.6

Within their financial limits, majority groups in 
America are free to choose their homes on the basis 
of a number of factors germane to their pursuit of 
happiness: the size of house needed to accommodate 
the family; preferences for particular styles of hous­
ing or kinds of neighborhoods; the availability of 
community facilities such as churches, schools, play­
grounds, clubs, shopping, and transportation.

This freedom of choice is denied members of minor­
ity groups. Granted the means, a non-white person 
may buy any automobile, any furniture, any clothing, 
any food, any article of luxury offered for sale. But 
it is not possible for a non-white American to bargain 
freely, in an open, competitive market, for the home 
of his choice, regardless of his intellect, integrity or 
wealth.

6Report of Commission on Race and Housing, Where Shall We 
Live?, p. 3 (1958).



14

The U.S. Commission on Civil Rights, referring to 
the “ White noose around the city,” has said:7

There may be relatively few Negroes able to 
afford a home in the suburbs, and only some of 
these would want such homes, but the fact is that 
this alternative is generally closed to them. It is, 
this shutting of the door of opportunity open to 
other Americans, this confinement behind invisible 
lines, that makes Negroes call their residential 
areas a ghetto.

Housing discrimination also abridges the right of 
the majority group owner freely to sell or rent his 
property. The mechanics of the dual, segregated hous­
ing market restrict the universe within which the 
white seller may find prospective purchasers. For 
practical purposes he may offer his house to whites or 
to Negroes, but not to both.

2. Housing discrimination imposes a heavy eco­
nomic penalty on the Negro. As the U.S. Commission 
on Civil Rights pointed out in the portion of its 1961 
Report quoted above, “ Negroes generally must pay 
more for equivalent housing than do the favored 
majority.” 8 This is because the discriminatory prac­
tices that hold down the supply of housing available 
to Negroes inevitably raise the price or rent they 
must pay.

7Oommission on Race and Housing, 1959 Report, p. 278.
Similarly, the Commission on Race and Housing, in its Report, 

Where Shall We Live? (1958), p. 36, said: “ . . . segregated groups 
receive less housing value, for their dollars spent than do whites, 
by a wide margin.”



15

McEntire, after reviewing all past studies as well 
as those conducted for the Commission on Race and 
Housing, concludes :9

Racial differences in the relation of housing 
equality and space to rent or value can be briefly 
summarized. As of 1950, nonwhite households, 
both renters and owners, obtained a poorer quality 
of housing than did whites at all levels of rent or 
value, in all regions of the country. Nonwhite 
homeowners had better quality dwellings than 
renters and approached more closely to the wThite 
standard, but a significant differential persisted, 
nevertheless, in most metropolitan areas and value 
classes. . . .

3. Other, less tangible, injuries are inflicted on the 
victims of discrimination in housing, with resultant 
evil effects on the state itself.10 “ AH of our community 
institutions reflect the pattern of housing,” the presi­
dent of the Protestant Council of New York has 
stated. “ It is indescribable, the amount of frustration 
and bitterness, sometimes carefully shielded, but the 
anger and resentment in these areas can scarcely be 
overestimated and can hardly be described; and this 
kind of bitterness is bound to seep, as it has already 
seeped, but increasingly, into our whole body politic.”  
He said he could “ think of nothing that is more 
dangerous to the nation’s health, moral health as well 
as physical health, than the matter of these ghettos.” 11

. -'Op. cit. supra, p. 155.
10See, in particular, Clark, Prejudice and Your Child (1955), 

pp. 39-40.
11U. S. Commission on Civil Rights, 1959 Report, p. 391.



16

Residential discrimination and segregation impede 
the social progress and job opportunities of minority 
groups, and deprive the whole community of the con­
tributions these Americans might otherwise make. It 
is questionable whether we can fully comprehend the 
enormous harm to the individual and to the com­
munity in terms of waste of human and economic re­
sources.

4. Perhaps the most notorious effect of the ghetto 
system is its creation of slums, with all their attendant 
evils—to the slum dweller and to the public weal. As 
we have seen, housing bias compels non-white groups 
to live in the restricted areas available to them. The 
excessive density of population resulting from the 
artificially limited supply is a classic cause of slums, 
which in turn breed delinquency, vice, crime and 
disease.

Thus, in 1959, the U. S. Commission on Civil Rights 
described the effects of residential discrimination as 
follows. “ The effect of slums, discrimination and in­
equalities is more slums, discrimination and inequali­
ties. Prejudice feeds on the conditions caused by 
prejudice. Restricted shun living produces demoral­
ized human beings—and their demoralization then be­
comes a reason for ‘ keeping them in their place’ . . . .  
Not only are children denied opportunities but the 
city and nation are deprived o f their talents and pro­
ductive power.”  The Commission reported that a 
former Secretary of Health, Education, and Welfare 
estimated the national economic loss at 30 million dol­
lars a year, representing the diminution in productive



17

power of those who by virtue of the inferior status 
imposed upon them were unable to produce their full 
potential.12

Two years later, the Commission reiterated its con­
clusion and added: “ These problems are not limited 
to any one region of the country. They are nationwide 
and their implications are manifold . . .” 13

5. The racial patterns of the slums resulting from 
housing bias severely distort programs of slum clear­
ance and urban renewal. The price paid for these 
civic improvements, in terms of forced moves and 
disrupted lives, is often borne most heavily by the 
minority families that live in the cleared areas.

The problem has been fully described by the U. S. 
Commission on Civil Rights.14 It points out that 
minorities are frequently the principal inhabitants of 
the areas selected for slum clearance or urban re­
newal.15 But each of these programs depends for 
success on the ability to relocate some or all of the 
slum dwellers. Urban renewal obviously contemplates

12U. S. Commission on Civil Rights, 1959 Report, p. 392; Com­
mission on Race and Housing, op. cit. supra, pp. 5, 36-38; Groner 
& Helfeld, Race Discrimination in Housing, 57 Yale L.J. 426, 
428-9 (1948).

13U. S. Commission on Civil Rights, 1961 Report, Book 4, 
“ Housing,” p. 1. See also MeEntire, op. cit. supra, pp. 93-94.

14U. S. Commission on Civil Rights, 1961 Report, Book 4, 
“ Housing,” c. 4. “ Urban Renewal,” especially pp. 82-83. See also 
Commission on Race and Housing, op. cit. supra, pp. 37-40.

15From the beginning of the Federal urban renewal program in 
1949 up to 1960, slum clearance and urban renewal projects had 
relocated 85,000 families. Of the 61,200 families whose color is 
known, 69% were non-white. Housing & Home Finance Agency, 
Relocation from Urban Renewal Project Areas through June 1960, 
p. 7 (1961).



18

the destruction of obsolete slum buildings, and these 
residents must of course move. And if they are simply 
moved to another segregated area, adding to its popu­
lation densities, a new slum is created. In those cir­
cumstances the renewal program represents much 
motion but little movement.

As Albert M. Cole, former Federal Housing and 
Home Finance Administrator, has said :16

Regardless of what measures are provided or 
developed to clear slums and meet low-income 
housing needs, the critical factor in the situation 
which must be met is the fact of racial exclusion 
from the greater and better part of our housing 
supply. . . .  Ho program of housing or urban im­
provement, however well conceived, well financed, 
or comprehensive, can hope to make more than 
indifferent progress until we open up adequate 
opportunities to minority families for decent 
housing.

The California Advisory Committee to the IT. S. 
Commission on Civil Rights discovered these phe­
nomena in full effect in this state, with clearly visible 
harm to the Negro population. It reported:17

The Committee found that concentration of 
Negro families into certain specified areas within 
California cities seems to be augmented, rather 
than alleviated, by urban renewal projects. It 
appears that Negroes displaced by such projects

18“ What is the Federal Government’s Role in Housing?” Ad­
dress to the Economic Club of Detroit, Feb. 8, 1954, quoted in 
Report of the Commission on Race and Housing, Where Shall We 
Live?, p. 40 (1958).

1750 States Report, supra, p. 45.



19

tend to find alternative housing in pre-existing 
ISTegro sections. There seems to be little effort to 
guide displaced families in their selection of 
homesites. The project moves forward and Negro 
f amilies, along with other groups, must quickly 
find new homes. More often than not, these Negro 
families settle in adjacent ghettos already in 
existence.

As the proportion of minority group members 
is extremely high in the so-called “ blighted areas” 
of our State’s larger cities, this is a major prob­
lem for those concerned with civil rights and 
minority housing.

6. The harmful effects of residential segregation 
are not limited to housing. A conspicuous feature of 
the ghetto system is its tendency to produce segrega­
tion in education and all other aspects of our daily 
lives.18 It is primarily responsible for the wide­
spread segregation that hampers Negroes and persons 
of Puerto Rican and Mexican origin in urban public 
schools.19 It has even impaired the job opportunities 
opened up by fair employment laws.20

One of the most disturbing features of the physical 
pattern of segregation, whether in housing or other-

18Myrdal, An American Dilemma, p. 618 (1944); Commission 
on Race and Housing, op. cit. supra, pp. 35-36.

19Maslow, De Facto Public School Segregation, 6 Vill. L. Rev. 
353, 354-5 (1961). In its 1959 Report, the U. S. Commission on 
Civil Rights said (at p. 545) : “ The fundamental interrelation­
ships among the subjects of voting, education, and housing make 
it impossible for the problem to be solved by the improvement of 
any one factor alone.” See also pp. 389-90.
. 20N. Y. State Commission Against Discrimination, In Search of 
Housing, A  Study of Experiences of Negro Professional and Tech­
nical Personnel in New York State (1959).



20

wise, is that it builds the attitudes of racial prejudice 
which, in turn, strengthen the segregated conduct pat­
terns. This was recognized almost two decades ago by 
a Presidential Committee:21

For these experiences demonstrate that segre­
gation is an obstacle to establishing harmonious 
relationships among groups. They prove that 
where the artificial barriers which divide people 
and groups from one another are broken, tension 
and conflict begin to be replaced by cooperative 
effort and an environment in which civil rights 
can thrive.22

W e show now that California, prior to enactment of 
Article 1, Section 26 of the Constitution, had indeed 
made significant inroads in creating “ an environment 
in which civil rights can thrive” .

21Report of the President’s Committee on Civil Rights, To Se­
cure These Rights, pp. 82-7 (1947).

22The impact of housing discrimination is not limited to citizens 
of our country. The California Advisory Committee to the U. S. 
Commission on Civil Rights confirms this:

“ Discrimination in housing directed against Negroes has 
had an unfortunate impact on foreign students whose skin 
colors are dark. The Committee heard testimony from an 
Indian student at Sacramento State College who indicated 
that he had been refused accommodations in a number of 
instances because of his color. The testimony of student gov­
ernment leaders at the same school indicated that this foreign 
student problem is significant. Commendably, student groups 
at Sacramento State are trying to do something about this 
situation through investigation and conference.

_ “ The Committee is very disturbed by the evident impact of 
discriminatory treatment on foreign students whose precon­
ceptions about American democracy have been rudely upset. 
These students are potential leaders in their own countries 
and the image of America which they take back with them 
can be significantly tarnished by such experiences.” 50 States 
Report, supra p. 46.



21

III. THE DEVELOPMENT OF CALIFORNIA LAW IN THE FIELD 
OF RACIAL DISCRIMINATION AND THE IMPACT OF 
ARTICLE I, SECTION 26, OF THE CONSTITUTION.

A. The Legislative and Judicial Response to Discriminatory 
Practices.

1. California Legislation Prior to 1959.

California has a long history of legislation pro­
hibiting discrimination on the ground of race.23 The 
first California anti-discrimination statute, enacted in 
1872,24 prohibited innkeepers and common carriers 
from discriminating in making their facilities avail­
able to persons of all races and creeds. In 1897 legis­
lation was enacted which prohibited discrimination in 
“ public accommodations.”25 Those provisions, which 
became Sections 51-54 of the Civil Code in 1905, and 
were amended in 1919 and 1923,26 guaranteed to “ all 
citizens . . . full and equal accommodations . . .  of inns, 
restaurants, hotels, eating houses . . . barber shops, 
bath houses, theaters, skating rinks, public convey­
ances and all other places of public accommodation 
or amusement, subject only to the conditions and 
limitations established by law, and applicable alike to 
all citizens.”

23See generally, Klein, The California Equal Rights Statutes in 
Practice, 10 Stanford L. Rev., 253, 255-259 (1958) ; Kaplan, Dis­
crimination in California Housing: The Need for Additional Leg­
islation, 50 Cal. L. Rev., 635, 636 (1962) ; Comment, The Rumford 
Fair Housing Act Reviewed, 37 U.S.C. L. Rev., 427, 430, 432 
(1964) ; Horowitz, California Equal Rights Statute, 33 U.S.C. L. 
Rev., 260-264 (1960) ; Note, Civil Rights: Extent of California 
Statute and Remedies Available for Its Enforcement, 30 Cal. L. 
Rev., 563-565 (1942).

24Now Pen. Code, Sec. 365.
25Cal. State. 1893, e. 185, p. 220.
26Cal. Stats. 1919, c. 210, p. 309; Cal. Stats. 1923, c. 235, p. 485.



22

In 1925, the California legislature enacted provi­
sions27 which prohibit instruction in California public 
-schools reflecting adversely upon the race or color of 
United States citizens. In 1935, the California Legis­
lature28 prohibited questions regarding, and discrimi­
nation on account of, race or color with respect to ap­
plicants or candidates for employment in California 
school districts. In 1937, the Legislature prohibited 
discrimination on the ground of race in the state civil 
service.29 Prohibition of discrimination by reason of 
race or color in employment on public work projects 
became law in 1939.30

The notation of color or race in California Civil 
Service personnel records was forbidden by statute in 
1941.31 In 1947, the California Legislature required 
that assistance programs for needy and distressed 
persons be administered “ without discrimination on 
account of race, . . .” 32 Two years later the legisla­
ture prohibited segregation and discrimination on the 
basis of race or color in the State militia, and enacted 
a declaration of State policy that:

27Cal. Stats. 1925, c. 276, p. 460, Sec. 2, now Education Code, 
Sections 8451 and 8452.

28Oal. Stats. 1935, c. 618, pp. 1748-1749, Sec. 5.798 as amended 
by Cal. Stats. 1951,, e. 1718, p. 4038, Sec. 2, now Education Code 
Section 13732.

28Cal. Stats. 1937, e. 753, p. 2110, Sec, 201, now Government 
Code, Section 10702.

30Cal. Stats. 1939, c. 643, p. 2068, Sec. 1, now found in Labor 
Code, Section 1735.

31Cal. Stats. 1941, e. 243, p. 1308, Sec. 1„ now Government Code, 
Section 19704.
. 32Cal. Stats. 1947, c, 161, p. 690, Sec. 1, now Welfare and 

Institutions Code, Section 19.



“ There shall be equality of treatment and oppor­
tunity for all members of the militia of this 
State without regard to race or color.”38

In the same year, 1949, the California Legislature for­
bade state agencies and offices from inquiring into 
the race of any job applicant, agent or employee of 
the State of California.* 34 In 1951, discrimination was 
prohibited on the ground of race or color with respect 
to apprentices in public works by any employer of 
labor union.35 In 1955, the California Legislature en­
acted a measure36 37 prohibiting discrimination on the 
ground of race or color by certain automobile liability 
insurers. In the same session of the California Legisla­
ture the following provision was enacted for the pro­
tection of teachers:87

“ It shall be contrary to the public policy of 
this, State for any person or persons charged, by 
[the governing boards of school districts], with 
the responsibility of recommending [teachers] for 
employment by said boards to refuse or to fail 
to do so for reasons of race, color . . .  of said 
applicants for such employment.”

The foregoing summary shows that for nearly a 
century the California Legislature has responded to

ssOal. Stats. 1949, c. 948, p. 1720, Sec. 1, now Military and 
Veterans Code, Section 130.

34Cal. Stats. 1949, c. 1578, p. 2826, now in Government Code, 
Section 8400.

35Cal. Stats. 1941,. c. 1192, p. 3005, Sec. 1, now in Labor Code, 
Section 177.6.

sRQal. Stats. 1955, c. 125, p. 588, Sec. 1, now in Insurance Code, 
Section 11628.

37Cal. Stats. 1955, c. 1910, p. 3519, now Education Code, Section 
13274.



24

the pressing need for corrective action against dis­
crimination on grounds of race and color. Legislative 
policy has been consistent in opposing such discrimi­
nation wherever it was found to exist, whether in 
public accommodations, education, employment, public 
welfare, the state militia or the insurance industry. 
As we show next, the Legislature has also applied the 
identical anti-discrimination policy to housing.

2. 1959 Legislation—The Unruh, Hawkins and Fair Employment
Practice Acts.

During 1959 the California Legislature enacted 
three far-reaching statutes prohibiting discrimination 
on the grounds of race or color. The first was enacted 
as Sections 51 and 52 of the Civil Code and replaced 
the early civil rights provisions contained in the then 
Sections 51 through 54 (see p. 21, supra) :

“ §51. This section shall be known, and may 
be cited, as the Unruh Civil Bights Act.

“ All citizens within the jurisdiction of this 
State are free and equal, and no matter what their 
race, color, religion, ancestry, or national origin 
are entitled to the full and equal accommodations, 
advantages, facilities, privileges, or services in all 
business establishments of every kind whatsoever.

“ This section shall not be construed to confer 
and right or privilege on a citizen which is con­
ditioned or limited by law or which is applicable 
alike to citizens of every color, race, religion, an­
cestry, or national origin.”

“ § 52. Whoever denies, or who aids, or incites 
such denial, or whoever makes any discrimination, 
distinction or restriction on account of color, race,



25

religion, ancestry, or national origin, contrary to 
the provisions of Section 51 of this code, is liable 
for each and every such offense for the actual 
damages, and two hundred fifty dollars ($250) in 
addition thereto, suffered by any person denied 
the rights provided in Section 51 of this code.”

In addition to this measure, which on its face en­
compassed all residential housing sold or leased by a 
“ business,”  the 1959 California Legislature enacted 
a specific statute directed against racial discrimina­
tion in residential housing.88 This measure, popularly 
known as the “ Hawkins Act,”  prohibited “ The prac­
tice of discrimination because of race, color, religion, 
national origin or ancestry in any publicly assisted 
housing accommodations . . . ”  (Cal. Stats. 1959, p. 
4074.)

The third major item of civil rights legislation 
during the 1959 session was the California Fair Em­
ployment Practices Act.39 This Act prohibited dis­
crimination on the grounds of race or color by certain 
employers and labor unions and established the Fair 
Employment Practice Commission to administer its 
provisions. The Act begins with this legislative decla­
ration of public policy (Lab. Code, See. 1411) :

“ It is hereby declared as the public policy of 
this State that it is necessary to protect and safe­
guard the right and opportunity of all persons 
to seek, obtain, and hold employment without dis- 38

38Cal. Stats. 1959, c. 1681, pp. 4074-4077, now in Health and 
Safety Code,, Sections 35700-35741.

89Cal. Stats. 1959, c. 121, Sec. 1, p. 1999, now in Labor Code, 
Sections 1410-1432.



26

crimination or abridgement on account of race, 
religious creed, color, national origin, or ancestry.

“ It is recognized that the practice of denying 
employment opportunity and discriminating in the 
terms of employment for such reasons, foments 
domestic strife and unrest, deprives the State of 
the fullest utilization of its capacities for develop­
ment and advance, and substantially and ad­
versely affects the interests of employees, em­
ployers, and the public in general.

“ This part shall be deemed an exercise of the 
police power of the State for the protection of 
the public welfare, prosperity, health, and peace 
of the people of the State of California.”

The next section of the Act provides (Lab. Code, 
sec. 1412) :

“ The opportunity to seek, obtain and hold em­
ployment without discrimination because of race, 
religious creed, color, national origin, or ancestry 
is hereby recognized as and declared to be a civil 
right.”

In addition to these anti-discrimination measures, 
the 1959' Legislature amended the Health and Safety 
Code to prohibit discrimination “ in undertaking com­
munity redevelopment or urban renewal projects.” 40

3. Legislation Subsequent to 1959.

There has been no slackening in the increasing 
tempo of civil rights legislation in California since

40Cal. Stats. 1959, e. 1102, See. 23, p. 3182, now in Health and 
Safety Code, Section 33050.



27

1959. In 1961 the Legislature prohibited county clerks 
from refusing to deputize voter registrars on the 
grounds of race or color.41 With respect to housing, 
the 1961 Legislature declared:42

‘ ‘ The Legislature of the State of California 
recognizes that among the principal causes of 
slum and blighted residential areas are the follow­
ing factors:

#  #  #  #  *

“ (c) Racial discrimination against persons of 
certain groups in seeking housing.”

In furtherance of the same policy, the 1961 Legisla­
ture prohibited all racially restrictive covenants affect­
ing real property interests,43 and all racially restric­
tive conditions subsequent in deeds of real property.44 
That session of the Legislature also added a provision 
to section 69 of the Civil Code providing that appli­
cants for marriage licenses “ shall not be required to 
state, for any purpose, their race or color. ’ (Cal. 
Stats. 1961, p. 1665.)45

The next major assault by the California Legislature 
on racial discrimination, and in particular on racial 
discrimination in residential housing, is contained in

41Cal. Stats. 1961, c. 1898, Sec. 1,. p. 4008, now in Election Code, 
Section 223.

«Cal. Stats. 1961, c. 2116, Sec. 1, p. 4377, now in Health and 
Safety Code, Section 33039.

«C al Stats. 1961, c. 1877, Sec. 1, p. 3976, now in Civil Code, 
Section 53.

44Cal. Stats. 1961,. c. 1078, Sec. 1, p. 2810, now in Civil Code, 
Section 782,

4BCal. Stats. 1961, c. 554, Sec. 2, p. 1665,



28

the measure popularly known as the “ Rumford Act,”  
which added sections 35700-35744 to the Health and 
Safety Code48 and replaced the provisions of the 
“ Hawkins Act.”  The Rumford Act was broader than 
the Hawkins Act in covering inter alia, residential 
housing containing more than four units, even though 
not publicly assisted. In addition, the Legislature 
vested the exclusive authority to administer the Rum­
ford Act in the Pair Employment Practice Commis­
sion. The legislative policy which the Rumford Act 
implemented is expressed in its initial provision 
(Health & Safety Code, sec. 35700) :

“ The practice of discrimination because of race, 
color, religion, national origin, or ancestry in 
housing accommodations is declared to be against 
public policy.

“ This part shall be deemed an exercise of the 
police power of the State for the protection of the 
welfare, health, and peace of the people of this 
State. ’ ’

4. Development of California Antidiscrimination Common Law.

Legal developments against racial discrimination in 
California have not been confined to legislative action. 
This Court and other courts in the State, in the de­
velopmental tradition of the common law, have recog­
nized that private acts of racial discrimination may 
warrant judicial relief.

An important example is James v. Marinship Corp., 
25 Cal.2d 721 (1944), involving a union which had a 
closed shop contract with an employer. The union 40

40Cal. Stats. 1963, c. 1853, Sec. 2, p. 3823.



29

would not admit Negroes into membership with rights 
and privileges equal to those enjoyed by white mem­
bers. Instead, the Negro employees were given the 
option of joining a segregated union or being dis­
charged under the union security agreement. This 
Court concluded that the closed shop, coupled with the 
closed union, constituted an unlawful arrangement 
affecting employment, and ordered the union either to 
provide equal membership opportunities for Negroes 
or to refrain from causing their discharge.

The decision was not predicated on statute. Rather, 
the Court ruled that racial discrimination in the situ­
ation there presented was contrary to the “ public 
policy of the United States and [the State of Cali­
fornia]”  and was therefore unlawful as a matter of 
common law. (25 Cal.2d at 739.) The Court explained 
the interplay between common law and statutory law 
prohibiting private discrimination (25 Cal.2d at 740) : 

“ Defendants contend that ‘ individual invasion 
of individual rights’ can be prohibited only by a 
statute of the state, and they point out that Cali­
fornia statutes forbidding racial discrimination 
by private persons relate only to certain specifi­
cally enumerated businesses such as inns, restau­
rants, and the like, but not to labor unions (Civ. 
Code, §§51-52). It has been said, however, that 
such statutes, to the extent that they embrace 
public service businesses, are merely declaratory 
of the common law.”

Two years later, this Court made it clear that 
Marinship was not restricted to circumstances where 
a union had obtained a monopoly of labor in the lo­



30

cality involved. Thus, in Williams v. Boilermakers, 
27 Cal.2d 586 (1946), the Court sustained a complaint 
similar to that in Marinship, which did not allege the 
inability of the plaintiff to obtain work at his trade 
elsewhere in the community. Following a discussion of 
decisions in other states which granted a common law 
remedy in like instances, the Court stated (27 Cal.2d 
at 590-591) :

“ These decisions are based upon the theory that 
such collective labor activity does not have a 
proper purpose and constitutes an unlawful inter­
ference with a worker’s right to employment. . . . 
This rule is not founded upon the presence of a 
labor monopoly in the entire locality, and the 
reasoning is simply that it is unfair for a labor 
union to interfere with a person’s right to work 
because he does not belong to the union although 
he is willing to join and abide by, reasonable 
union rules and is able to meet all reasonable con­
ditions of membership. dSTo purpose appropriate to 
the functions of a labor organization may be 
found in such discriminatory conduct. Here the 
union’s efforts are directed, not toward advancing 
the legitimate interests of a labor union, but 
rather against other workers solely on the basis 
of race and color. . . . The public interest is 
directly involved because the unions are seeking 
to control by arbitrary selection the fundamental 
right to work.”

The Court added, in a more general vein, that “ where 
persons are subjected to certain conduct by others 
which is deemed unfair and contrary to public pol­
icy, the courts have full power to afford necessary



31

protection in the absence of statute”  (emphasis 
added) .47

Apart from holdings which rest on the existence of 
a common law public policy against racial discrimina­
tion, this Court on numerous occasions has empha­
sized the pervasiveness of California’s anti-discrimi­
nation policy at all levels of California law. Thus, in 
Orloff v. Los Angeles Turf Club;, 30 Cal.2d 734, 739 
(1951), the Court stated:

“ The so-called civil rights statutes (Civ. Code 
§§51-54) do not necessarily grant theretofore non­
existent rights or freedoms. The enactments are 
declaratory of existing equal rights and provide 
the means for their preservation by placing re­
strictions upon the power of proprietors to deny 
the exercise of the right and by providing pen­
alties for violation.”

See also, Piluso v. Spenser, 36 Cal.App. 416 (1918), 
for an earlier statement to similar effect. In holding 
the Unruh Act to be applicable to housing, the Court 
has likewise observed (Burks v. Poppy Construction 
Co., 57 Cal.2d 463, 471 (1962)) :

“ Discrimination on the basis of race or color is 
contrary to the public policy of the United States

4"The California Attorney General has noted that the rule 
underlying the Marinship decision extended protection against 
racial discrimination from practices involving “ government 
agencies and public service businesses” to situations involving 
“ private rather than public action.” The Attorney General con­
cludes that “What had hitherto been regarded as_ a rule of public 
policy affecting only the government and public service enter­
prises, has become to some extent, not yet clearly delineated, a 
rule of conduct affecting private individuals and organizations.
9 Ops.Cal.Atty.Gen. 271, 274. See also Klein, The California 
Equal Rights Statutes in Practice, 10 Stan. L. Rev., 253, 270-272 
(1958).



32

and of this state. Atlhough the antidiscrimination 
provisions of the federal Constitution relate to 
state rather than private action, they nevertheless 
evidence a definite national policy against dis­
crimination.”

In sum, both statutory and common law prohibiting 
racial discrimination expanded and developed in this 
State consistently until the passage of Article I, Sec­
tion 26. The significance of the steady development is 
clear. First, the mere volume of the law evidences 
the magnitude in California of the evil of racial and 
religious discrimination. Second, the California Legis­
lature, in the exercise of traditional police powers, and 
the California courts, within the framework of the 
common law, have been able to play a continuingly ac­
tive role in redressing those evils. Plainly, the granting 
by this State of an “ absolute”  right to discriminate in 
housing on grounds of race or religion is a monu­
mental reversal of California’s deep rooted and un­
equivocal public policy against all forms of racial and 
religious discrimination. The extent of that reversal 
of public policy will be treated in the following exam­
ination of the effect on existing law of Article I, 
Section 26.

B. The Impact of Article I, Section 26, on California Law.

1. The Effect on the Bumford Act.

The Rumford Act expressly declares that racial and 
religious discrimination in housing is contrary to the 
public policy of California (see p. 28, supra). While 
the challenged constitutional amendment does not 
refer either to racial or religious discrimination or to



33

the Rum ford Act, there is no doubt that both the 
language and the purpose of the amendment nullify 
the effectiveness of the Act. See p. 28, supra. 
Article I, Section 2G, forbids the courts as well as any 
other state agency to deny “ the right”  of a seller or 
lessor of real property “ to decline to sell, lease or rent 
such property to such person or persons as he, in his 
absolute discretion, chooses.”  The landlord who re­
fuses to rent an apartment to a Negro because of the 
color of his skin acts in derogation of the public 
policy articulated in the Rumford Act, but the new 
constitutional amendment plainly denies the Negro 
redress in Court or other state agency. The new 
amendment, in short, places the authority of the law 
in direct support of the discriminating landlord.

2. The Effect on the Unruh Act.

The Unruh Act, as shown above, prohibits racial 
discrimination “ in all business establishments of every 
kind whatsoever,”  including businesses which deal 
with housing. Burks v. Poppy Construction Co., 57 
Cal.2d 463 (1962). The effect of the new amendment 
upon the business activity of transferring of real 
property interests, as distinguished from non-business 
transactions, is not free from doubt.48

I f business establishments are outside the scope of 
the amendment, the Unruh Act may continue to pro­

48Article I, Section 26, speaks in terms of “ any person” who 
desires to sell “ his real property,” and his right to decline to sell 
to a person “ as he, in his absolute discretion, chooses.” (Emphasis 
added.) The amendment defines-“ person” to include “ partner­
ships, corporations and other legal entities,” but it is extremely



34

vide a limited remedy against discrimination. But that 
remedy would not extend to those who suffer from 
discriminatory practices by private landowners whose 
discrimination still would be sanctioned and encour- 
aged by the state. On the other hand, if the amend­
ment authorizes discrimination by business establish­
ments in the same manner as with individual land- 
owners, such authorization equally violates the Four­
teenth Amendment. See infra, p. 36, et seq.

3. The Effect on the Development of California Common Law.

It cannot be doubted that the effect of Article I, 
Section 26 is to stunt the potential growth of common 
law prohibiting discrimination in housing. The situ­
ation in housing now is analogous to that which would 
have resulted from a constitutional amendment, fol­
lowing the decision of this Court in Marinship, to the 
effect that unions with closed shop agreements are 
entitled to deny membership on any ground which 
they, in their absolute discretion, choose. Presumably, 
the California Constitution thereby would put an end 
to the common law principle embodied in Marinship. 
In short, California courts are precluded by the 
amendment, if  valid, from further considering com­
mon law principles in cases involving discrimination 
by landowners against minority groups. The force of 
social, moral and humane factors which have made the 
common law an accommodating legal framework, re­
doubtful that the purpose of the amendment was to protect the 
partnership or corporation or the individual in the business of 
selling or renting real property. The official ballot argument in 
favor of the amendment was restricted to a discussion of its effect 
on the individual landowner.



35

sponsive to historical experience, has been neutralized 
in the area covered by the amendment.49

4. The Effect on Future Legislative Regulation,

The new amendment flatly prohibits the Legislature 
from “ directly or indirectly”  limiting the “ right”  of 
a landowner to discriminate in the sale or lease of his 
property. Thus, in this subject of vital public concern, 
there is total disabling of the ordinary legislative 
processes which are geared to respond to the need for 
regulation. The legislative disability extends to the 
county and municipal level as well as to the state 
Legislature.

In consequence of the amendment, California stands 
as the single state in the Union in which the power to 
deal with private discrimination in housing has been 
taken away from the Legislature and from local law 
making bodies by constitutional mandate. The situa­
tion is anomalous. As this Court has observed, “ Dis­
crimination in housing leads to lack of adequate hous­
ing for minority groups . . . and inadequate housing 
conditions contribute to disease, crime and immoral­
ity.” Burks v. Poppy Construction Co., 57 Cal.2d 163, 
471 (1962). These are precisely the problems which, 
under our form of government, are immutably en­
trusted to the state for regulation in the exercise of 
traditional police powers. But Article I, Section 26, of 
the Constitution, withdraws the Legislature and other

49Mere repeal of the Rumford Act would not have had the same 
effect. For example, in the absence of legislation, the courts might 
have provided redress to victims of housing discrimination. We 
discuss the point in greater detail, supra, p. 28.



branches of the government from this vital area of 
responsibilty, and lias the direct effect of delegating 
solely to private persons the absolute power to control 
the discriminatory housing conditions, which “ con­
tribute to disease, crime and immorality” throughout 
the state.

IV. ARTICLE I, SECTION 26 CONSTITUTES DISCRIMINATORY 
STATE ACTION WITHIN THE REACH OF THE FOURTEENTH 
AMENDMENT OF THE UNITED STATES CONSTITUTION.

A. The Fourteenth Amendment Prohibits State Action in Fur­
therance of Racial Discrimination in the Sale and Rental of 
Real Property.

The Fourteenth Amendment of the federal Consti­
tution provides:

“ No State shall make or enforce any law which 
shall abridge the privileges or immunities of citi­
zens of the United States; nor shall any State 
deprive any person of life, liberty, or property, 
without due process of law; nor deny to any per­
son within its jurisdiction the equal protection 
of the laws.”

The Amendment’s applicability to discriminatory state 
action in the sale and purchase of real property is 
clear:

“ Colored persons are citizens of the United States 
and have the right (under the equal protection 
clause) to purchase property and enjoy and use 
the same without laws discriminating against 
them solely on account of color.” (Buchanan v. 
Warley, 245 U.S. 60, 78-79 (1917).)



The landmark decision in Shelley v. Kraemer, 334 
U.S. 1 (1948), dispels all doubts:

. among the civil rights intended to be pro­
tected from discriminatory state action by the 
Fourteenth Amendment are the rights to acquire, 
enjoy, own and dispose of property. Equality in 
the enjoyment of property rights was regarded 
by the framers of that Amendment as an essential 
precondition to the realization of other basic civil 
rights and liberties which the Amendment was 
intended to guarantee.”  (334 U.S. at 10.)

Accordingly, California clearly is forbidden by the 
federal constitution from asserting its governmental 
authority to discriminate against minority groups in 
the enjoyment of the right to purchase or rent real 
property.

I f  California had enacted a constitutional amend­
ment stating that Negroes were not entitled to legisla­
tive or judicial relief from private acts of housing 
discrimination it would have been a plain violation 
of the Fourteenth Amendment. The difficulty in the 
present cases is that the discrimination becomes opera­
tive through a subtle combination of state and private 
action. The resulting problem, though novel in the 
present context, is not unfamiliar. In a complex so­
ciety, governmental and private action are increasingly 
often entwined as well as interdependent. The state 
acts in many forms and through many channels. Pri­
vate activity may benefit from, or be stimulated by, 
state subsidies, state regulation and other forms of 
state aid or state encouragement. W e show, first, by



way of background, that those combinations of private 
and state action which result in invidious discrimina­
tion or interference with individual liberty are eonsti- 
stutionally prohibited,50 and, second, that Article I, 
Section 26, despite its artful phrasing, is within the 
penumbra of that doctrine.

1. Private Discrimination on State-owned Property.

It is settled law that state ownership of property 
is sufficient for applicability of the Fourteenth Amend­
ment; operation of the facility directly by the state 
is not a prerequisite. Thus, in Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961), state prop­
erty was leased to a private restaurant which refused 
to serve Negroes. The discrimination was found to be 
state action for purposes of the Fourteenth Amend­
ment, even though the actual decision to exclude Ne­
groes from the restaurant was made by the restaurant 
alone and there was no showing that the state had 
endorsed or required the exclusion. As the Supreme 
Court explained (365 U.S. at 725) :

“ By its inaction * * * the state, has not only 
made itself a party to the refusal of service, but 
has elected to place its power, property and pres­

50For excellent analyses of the development of the law of state 
action, see Horowitz, The Misleading Search for “ State Action”  
under the Fourteenth Amendment, 37 Cal.L.Rev. 208 (1957); 
Williams, The Twilight of State Action, 41 Tex.L,R. 347 (1963); 
Lewis, The Meaning of State Action, 60 Colnm.L.Rev. 1083 
(I960) ; Karst & Van Alsyne, Sit-Ins and State Action, 14 
Stan.L.Rev. 762 (1962) ; St. Antoine, Color Blindness But Not 
Myopia; A New Look at State Action, Equal Protection, and 
“ Private”  Racial Discrimination, 59 Mich.L.Rev. 993 (1961) ; 
Shanks, “ State Action” and the Girard Estate Case, 105 U.Pa.L. 
Rev. 213 (1956); Comment, The Impact of Shelley v. Kraemer on 
the State Action Concept, 44 Cal.L.Rev. 718 (1956).



39

tige behind the admitted discrimination. The 
State has so far insinuated itself into a position 
of interdependence with (the lessee) that it must 
be recognized as a joint- participant in the chal­
lenged activity * *

See also, Darlington v. Plumber, 240 F.2d 922 (C.A. 
5, 1956), certiorari denied, 353 U.S. 924; City of 
Greensborough, v. Simpkins, 246 F.2d 425 (C.A. 4, 
1957); Department of Conservation & Dev. v. Tate, 
231 F.2d 615 (C.A. 4, 1955), certiorari denied, 352 
U.S. 838.

2. Private Discrimination in the Operation of Property Under State- 
assistance Programs.

State assistance programs of various kinds are a 
sufficient link between the private property owner and 
the state to subject the operation of the property to 
the equal protection requirements of the Fourteenth 
Amendment. Thus, it has been recently held that 
where a private hospital received financial and other 
assistance under the Federal Hill-Burton Act which 
was administered by the state, the action of the pri­
vate hospital was action of the state for the purposes 
of the Fourteenth Amendment. (Simpkins v. Moses 
II. Cohn Memorial Hospital, 323 F.2d 959 (C.A. 4, 
1963), certiorari denied, 376 U.S. 938.) The same 
court found racial discrimination in a privately 
owned hospital to be constitutionally forbidden where 
the hospital land was granted by the state, was to re­
vert to the state upon cessation of hospital operations, 
and where the state had supplied the hospital with 
funds for certain purposes, and had granted it a tax



40

exemption and power of eminent domain. Eaton v. 
Grubbs, 329 F.2d 710 (C.A. 4, 1964).

Similarly, the Sixth Circuit has held that a private 
motel’s operations were subject to the Fourteenth 
Amendment where the real property upon which the 
motel had been constructed was purchased from a 
municipality pursuant to an urban renewal program 
and the motel was part of a comprehensive plan of 
development. Smith v. Holiday Inns of America, Inc., 
336 F.2d 630 (C.A. 6, 1964).

Consistent with the preceding cases is the earlier 
California decision in Ming v. Horgan (Cal. Super. 
Ct. 1958), 3 Race Relations L. Repts. 693, which in­
volved a private developer who was licensed and in­
spected by the state and who had secur ed FIT A mort­
gage financing for purchasers of his homes. The 
Superior Court held that the action of the private 
developer in discriminating against prospective pur­
chasers on the grounds of race was state action pro­
hibited under the Fourteenth Amendment.51

Those decisions demonstrate that the nexus between 
prohibited discrimination and state responsibility is 
sufficient wherever there is some state assistance to, or 
participation in, the construction or operation of the 
property or facility, so that it may be said that the 
property owner is operating under the aegis or ap­
proval of the state. The Courts have warned private

51Decisions to the contrary such as Dorsey v. Styvesant Town 
Corp., 299 N.Y. 512 (1949), certiorari denied 339 U.S. 981, and 
Johnson v. Levitt & Son, 131 F.Supp. 114 (E.D, Pa. 1955) are 
of questionable validity in the light of Burton v. Wilmington 
Parking Authority, 365 U.S. 715 (1961), discussed supra, p. 38.



41

landowners, in substance, “ if  you rely to any appre­
ciable degree on state assistance or protection, you 
must observe the constitutional requirements imposed 
on states in. the maintenance of your property.”

3. Private Discrimination in the Management of Property Utilized in 
a Quasi-public Function.

In Marsh v. Alabama, 326 U.S. 501 (1946), the Su­
preme Court held that a town which was wholly- 
owned by a private corporation could not prohibit a 
member of Jehovah’s Witnesses from distributing 
literature on a sidewalk of the town. The Court 
reasoned that since an ordinary municipality would 
be prohibited from such conduct, the same rule should 
be applicable to private property which serves as a 
municipality for its residents.52 The Court, in short, 
found that the action of the private corporation was 
the action of the state for the purpose of the Four­
teenth Amendment. For analogous situations in which 
this Court has required private entities whose opera­
tions have public or quasi public aspects to bear the 
responsibilities of public bodies, see Schwartz-Tor- 
rance Investment Comp. v. Bakery Local 31, 61 Cal. 
2d 766 (1964) ; and James v. Marinship Corp., supra,
p. 28.

4. Private Discrimination Where the State Has Delegated a Govern­
mental Function.

The state is constitutionally required to prevent 
private racial and religious discrimination when it 
delegates the performance of governmental responsi­

52The applicability of this principle to subdivisions and planned 
communities seems apparent.



42

bilities to private groups. Tlie principle lias been 
firmly established with respect to political elections. 
The electoral process is, of course, a function with 
respect to which the state must assume a governmental 
responsibility. To the extent that illicit discrimination 
is accomplished in the handling of election procedures, 
it makes no difference under the Fourteenth Amend­
ment whether the state acts directlv or through an 
intervening political group. Accordingly, private 
political parties cannot constitutionally discriminate 
against Negroes in party primaries. Smith v. All- 
wright, 321 U.S. 649 (1944). Nor can a voluntary 
political organization constitutionally discriminate 
against Negroes at pre-primary elections. Terry v. 
Adam-s, 345 U.S. 461 (1953) ; see Nixon v. Condon, 
286 U.S. 73 (1932).

Relevant also are cases in which local officials— 
police officers—were found to have transgressed the 
Fourteenth Amendment’s interdictions against state 
discrimination by failing to protect persons from 
racial and religious attacks. As stated in Lynch v. 
United States, 189 F.2d 476 (C.A. 5, 1951):

“ There was a time when the denial of equal pro­
tection of the laws was confined to affirmative acts, 
but the law now is that culpable official inaction 
may also constitute a denial of equal protection.”

The principle that states must act affirmatively to 
insure equal protection of the laws is scarcely of recent 
origin. The opinion in the Civil Rights Cases, 109 
IT.»S. 3 (1883), although concluding that the Four­
teenth Amendment was directed only at the states and



43

not individuals, emphasized the importance of the 
constitutional objective of achieving equality of treat­
ment for all citizens. The basis of the decision was the 
assumption that redress under state law would be 
available in the event of abridgement- by private in­
dividuals of the complainant’s right to equal treat­
ment. 109 U.S. at 17. Compare the earlier statement 
of a federal circuit court ( United States v. Hall, 26 
Fed.Cas. 79 (C.C.S.D. Ala., 1871) :

“ (T)he Fourteenth Amendment not only pro­
hibits the making or enforcing of laws which shall 
abridge the privileges of the citizens, but prohibits 
the states from denying to all persons within its 
jurisdiction the equal protection of the laws. 
Denying includes inaction as well as action, and 
denying1 the equal protection of the laws includes 
the omission to protect, as well as the omission to 
pass laws for protection. A citizen of the United 
States is entitled to the enforcement of the laws 
for the protection of his fundamental rights, as 
well as the enactment of such laws.” 53

5. Private Discrimination Authorized, Sanctioned or Encouraged by 
the State.

The Fourteenth Amendment forbids the state from 
lending its power to authorize, sanction or encourage 
private discrimination. This was the ruling in Shelley

53A similar position was taken last year by Chief Justice War­
ren, and Justices Douglas and Goldberg in Bell v. Maryland, 378 
U.S. 226 (1946). These Justices would hold that a violation of the 
Fourteenth Amendment is established where a state fails to pro­
tect by its own laws the equality of access to public accommoda­
tions. See generally, Frank & Monro, The Original Understanding 
of “Equal Protection of the Laws,”  60 Colum.L.Rev. 131 (1950) ; 
Miller, An Affirmative Thrust to Due Process of Law, 30 Geo. 
Wash.L.Rev. 399 (1962); Peters, Civil Rights and State Non- 
Action, 34 Notre Dame Law 303 (1959).



44

v. Kraemer, 334 U.S. 1 (1948), where landowners 
sought the assistance of a state court to enforce a re­
strictive racial covenant against a Negro purchaser. 
The discriminatory covenant involved only individual 
action, but the United States Supreme Court made it 
clear that the state was implicated as soon as a suit 
was brought to enforce the covenant. As the Court 
stated (334 U.S. at 20) :

“ State action, as that phrase is understood for 
the purposes of the Fourteenth Amendment, 
refers to exertions of state power in all forms. 
And when the effect of that action is to deny 
rights subject to the protection of the Fourteenth 
Amendment, it is the obligation of this Court to 
enforce the constitutional commands. * * *
We hold that in granting judicial enforcement of 
the restrictive agreements in these cases, the 
States have denied petitioners the equal protec­
tion of the laws and that, therefore, the action of 
the state courts cannot stand. We have noted that 
freedom from discrimination by the States in the 
enjoyment of property rights was among the basic 
objectives sought to be effectuated by the framers 
of the Fourteenth Amendment. That such dis­
crimination has occurred in these cases is clear. 
Because of the race or color of these petitioners 
they have been denied rights of ownership or 
occupancy enjoyed as a matter of course by other 
citizens of different race or color.54

54See also Hurd v. Hodge 334 U.S. 24 (1948), where the Court 
held that enforcement of a racially restrictive covenant by a 
court in the District of Columbia violated section 1978 of the 
Revised Statutes, which 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.”



45

In Barrows v. Jackson, 346 U.S. 249 (1953), the 
Supreme Court subsequently held that a racially re­
strictive covenant could not constitutionally support 
a suit for damages. The Court explained (346 U.S. 
at 254) :

“ The result of that sanction by the State would 
he to encourage the use of restrictive covenants. 
To that extent, the State would act to put its sanc­
tion behind the covenants. I f  the State may thus 
punish respondent for her failure to carry out her 
covenant, she is coerced to continue to use her 
property in a discriminatory manner, which in 
essence is the purpose of the covenant. Thus, it 
becomes not respondent’s voluntary choice but the 
State’s choice that she observe her covenant or 
suffer damages.”  (Emphasis added.)

Unconstitutional governmental encouragement of 
private discrimination also was found in Anderson v. 
Martin, 375 U.S. 399' (1964), involving racial labeling 
of' candidates on ballots. That practice, although ob­
viously not requiring individuals to discriminate, was 
struck down because it encouraged and assisted dis­
crimination. See also Baldwin v. Morgan, 287 E.2d 
750 (C.A. 5, 1961).

The principle that the state may not, through its 
legal system, encourage or sanction racial discrimina­
tion was also applied by a California Court in Abstract 
Investment Go. v. Hutchison, 204 Cal. App. 2d 242 
(1962). The case involved an action in unlawful de­
tainer of property leased under a month to month 
tenancy to the defendant, a Negro, who admitted that 
the landlord was entitled to possession under the terms



46

of the tenancy, but affirmatively alleged that the sole 
reason for the eviction was that he was a Negro. The 
trial court refused to admit any evidence with respect 
to this affirmative defense and rendered judgment in 
favor of the landlord. Applying Shelley v. Kraemer, 
swpra, the District Court of Appeal reversed the judg­
ment on the ground that, if  it could be proven that 
racial considerations lay behind the eviction, enforce­
ment of the landlord’s claim would constitute unlaw­
ful state action.

State authorization of discriminatory acts by pri­
vate individuals was recognized as satisfying the state 
action test under the Fourteenth Amendment, in Mc­
Cabe v. Atchinson T. & S. F. By., 235 U.S. 151 (1914). 
The case held that the denial of equal railroad facili­
ties to Negroes by a railroad was unconstitutional 
state action on the ground that the discrimination was 
authorized by a state statute. The Court reasoned that 
discrimination pursuant to statutory authorization was 
action under “ the authority of a state law” , which in 
constitutional contemplation was not materially less 
unconstitutional than discrimination pursuant to state 
requirement. (235 U.S. at 162.)

Three of the justices who participated in Burton 
v. Wilmington Parking Authority, supra, adopted this 
reasoning. Mr. Justice Stewart, concurring, finding 
that the state Court involved in that case had con­
strued the state law “ as authorizing discriminatory 
classification based exclusively on color” , concluded 
that “ Such a law [is] clearly violative of the Four­
teenth Amendment.” 365 U.S. at 726-727. Mr, Justice



47

Frankfurter, dissenting with Justices Harlan and 
Whittaker, did not read the state statute as authoriz­
ing discriminatory treatment against Negroes, but 
made clear that if the statute were so interpreted, it 
would not survive the constitutional test. ‘ £ For a state 
to place its authority behind discriminatory treatment 
based solely on color is indubitably a denial by a State 
of the equal protection of the laws in violation of the 
Fourteenth Amendment.”  365 U.S. at 727.

The same reasoning underlies the decision of the 
Court of Appeals for the Fifth Circuit in Bowman v. 
Birmingham Transit »Company, 280 F.2d 531 (C.A. 
5, 1960). In that case, the City of Birmingham had 
authorized carriers to make such rules regarding the 
seating of passengers as the carrier deemed necessary 
for safety and convenience. The city also provided 
that violation of these rules would constitute a crim­
inal offense. A carrier rule which provided for racially 
segregated seating on busses was found to be author­
ized by the City, and therefore was state action under 
the Fourteenth Amendment.

B. There Is Sufficient State Encouragement of Racial Dis­
crimination Under Article I, Section 26 to Bring It Within 
the Proscription of the Fourteenth Amendment.

W e have demonstrated that racial discrimination 
by private individuals is not wholly beyond the reach 
of the Fourteenth Amendment. While there must be 
a nexus between individual action and the state in 
order to bring the federal constitution into play, state 
involvement need not rise to the level of direct or



48

affirmative action. A  state law requiring individual 
discriminatory acts is perhaps the most obvious form 
of state action through individual conduct, but the 
application of the Fourteenth Amendment has cer­
tainly not been limited to such flagrant situations. 
A  state cannot exculpate itself merely by showing that 
a private person made the effective determination to 
engage in invidious discrimination or some other in­
vasion of fundamental rights. Implication of the state 
through official authorization or encouragement of 
unequal treatment of the races, through the avail­
ability of its sanctions in support of such inequality, 
or through failure to act in an area of state respon­
sibility involving discriminatory conduct all have pro­
vided the occasion for invocation of the Fourteenth 
Amendment.

The conclusion is inescapable that the nexus between 
the state and private racial or religious discrimination 
in housing embodied in Article I, Section 26, brings 
it within the proscriptions of the Fourteenth Amend­
ment.

The new amendment to the California Constitution 
places the state’s legal system squarely behind private 
acts of housing discrimination. The landlord who 
would deny Negroes the opportunity to rent or pur­
chase is given the signal to proceed. But discrimi­
nation authorized or encouraged by the state has 
consistently been condemned under the Fourteenth 
Amendment, even though the decision to discriminate 
is left to private choice. See, e.g., Shelley v. Kraemer, 
334 U.S. 1 (1948) ; Barroivs v. Jackson, 346 U.S. 249



49

(1953) ; Anderson v. Martin, 375 U.S. 399 (1964) ; 
McCabe v. Atchison T. & S. F. By., 235 U.S. 151 
(1914) ; Nixon v. Condon, 286 U.S. 73 (1932); Boman 
v. Birmingham Transit Company, 280 U.2d 531 (C.A. 
5,1960).

The new amendment implicates state agencies in dis­
criminatory practices in a manner no different in 
principle than was the case in Shelley v. Kraemer, 
supra. There the judicial enforcement of private dis­
criminatory practices was determined to be state 
action within the Fourteenth Amendment. Under the 
new amendment, the state judiciary is brought into 
play on the side of discriminatory practices in an 
equally meaningful way, i.e., through protecting the 
act of discrimination against legal interference. The 
point is illustrated by Abstract Investment Co. v. 
Hutchison, 204 Cal.App.2d 242 (1962), where the 
Court concluded that a Negro might defend an action 
of unlawful detainer by showing that his rental prop­
erty was being taken from him solely on account of 
his color. Article I, Section 26, however, would deprive 
the Negro defendant of his defense on the ground that 
the landlord may decline to rent on any ground he 
chooses. Thus, the California Courts would be re­
quired to strike the defense in a repetition of the 
Abstract Investment ease.55 Plainly, if the federal 
Constitution requires judicial protection against evic­
tion on racial grounds, as held in Abstract Investment,

B5This is precisely what occurred below in Hill v. Miller, Sac. 
No. 7657, now pending in this Court.



50

and the new amendment to the state Constitution 
prohibits the judiciary from preventing such an evic­
tion, the federal Constitution and Article I, Section 
26 are at war.

It is sheer sophistry to suggest that the new amend­
ment merely places the state in a neutral position— 
neither encouraging nor discouraging racial discrimi­
nation. Advocates of this view would argue that the 
amendment places the state in the same position as it 
would be in the absence of any legislation relating to 
discrimination in housing. But the enactment of an 
affirmative state policy banning state interference 
with landowners who discriminate against racial mi­
norities cannot be equated with the absence of stat­
utory law relating to discrimination.

Unlike the situation which would exist if  present 
fair housing legislation were merely repealed, the new 
amendment: (1) prevents the development of common 
law judicial remedies against private acts of racial 
discrimination, (2) precludes future State and local 
legislative action against private acts of racial dis­
crimination no matter how moderate the action and 
how pressing its need, (3) enshrines in the California 
Constitution the grant of an “ absolute”  right to dis­
criminate on racial and religious grounds. This we 
submit goes far beyond “ neutrality”  and, in substance, 
constitutes action of the State which clearly sanctions 
and encourages private acts of racial discrimination. 
There is, in fact, a difference in kind between state 
refusal to prohibit private acts of racial discrimina­



51

tion (no fair housing legislation) and where, as here, 
the State by Constitutional amendment makes private 
acts of racial discrimination a protected “ right.”  In 
the former instance, private acts of racial discrimina­
tion are, to be sure, not prevented by legislation, but 
in the latter instance, they are actually encouraged by 
the State.

There can be little doubt that the new amendment 
on its face tends to encourage racial discrimination in 
housing on the part of those who desire to engage in 
it. As observed in Barrows v. Jackson, 346 U.S. 249, 
254 (1953), there is unconstitutional encouragement 
of the practice of writing racially restrictive covenants 
when the state places “ its sanction behind the (dis­
criminatory) covenants.” Encouragement to discrimi­
nate is surely no less when the state enacts a consti­
tutional provision placing acts of discrimination 
beyond the reach of the state Courts, the State Legis­
lature and every governmental agency in the state. By 
no stretch of the imagination may this be fairly re­
garded as “neutrality.”  By virtue of Article I, Section 
26, the state has placed its thumb on the scale and 
tipped it in favor of discrimination.

The encouragement and assistance which the new 
amendment affords to discrimination becomes even 
clearer upon consideration of the background events 
which led to its adoption. The measure was spon­
sored by the California Real Estate Association and 
the California Apartment Owners Association, and 
it was made clear during the efforts to obtain 
signatures on the initiative petition that the proposal 
was intended to nullify the Rumford Act and other



52

fair housing laws.56 The official ballot argument in 
favor of the measure disclosed the same purpose.57 It 
is of course general public knowledge that the cam­
paign respecting the proposed amendment was prin­
cipally concerned with the issue of racial discrimina­
tion. In short, the purpose and expected effect of the 
measure was to free property owners from legal re­
strictions against discriminatory practices in housing. 
Indeed, racial considerations in the transfer of prop­
erty constituted the only matters in controversy in 
respect to the amendment; neither proponents nor op­
ponents were in disagreement as to other considera­
tions that might motivate a landowner to decline an 
offer to buy or rent, and there was no occasion to pro­
pose legislation in this respect.58

In light of this single-minded purpose o f the new 
amendment, its constitutionality need not be evaluated 
in terms of its language alone. State laws or actions 
which are neutral considered in a vacuum are the

S6See, for example, Editorial in Vol. XLIV  Issue No. 2 of Cali­
fornia Real Estate Magazine (Dec. 1963), the official publication 
of the California Real Estate Association, which is reproduced on 
pp. 44-45 of appellant’s opening brief in Hill v. Miller, Sac. No. 
7657.

B7The argument asserted that ‘‘ Under the Rumford Act, any 
person refused by a property owner may charge discrimination” 
and urged voters to enact the proposed amendment in order to 
free property owners of any such charges.

58The relevance of materials from the official ballot argument 
in determining intent in initiative and referendum measures, par­
ticularly where supported by matters of common knowledge as to 
the issue before the voters, has been recognized by this Court. 
See Reuter v. Board of Supervisors, 220 Cal. 314 (1934); San 
Mateo v. Railroad Commission, 9 Cal.2d 1, 8; State Compensation 
Fund v. Riley, 9 Cal.2d 126, 134 (1937).



equivalent of unconstitutional discriminatory state 
action where, as in the present case, it can be shown 
by reference to surrounding circumstances that the 
purpose and necessary effect is to bring about racial 
or religious discrimination. For example, in Griffin v. 
School Board, 377 U.S. 218 (1964), the State of V ir­
ginia closed its public schools in one county but con­
tinued to operate its public school system in the other 
counties. The authority of the state to close its schools 
for lawful reasons was unnecessary to consider, since 
the Court concluded on the basis o f external circum­
stances surrounding the closing that this was not the 
case. As the Court stated (377 U.S. at 231) :

“ * * * (The) public schools were closed and pri­
vate schools operated in their place with state and 
county assistance, for one reason, and one reason 
only: (to discriminate against Negro children).”

In the light of this revealing motivation, the state 
action took on an unconstitutional aspect. To the same 
effect, see Wright v. Rockefeller, 376 U.S. 52 (1964), 
where the circumstances surrounding a state reappor­
tionment act were inquired into for the purpose of 
ascertaining whether the districts were composed 
“ with racial considerations in mind.” See also, Guinn 
v. United States, 238 U.S. 347 (1915); Lane v. Wilson, 
307 U.S. 268 (1939) ; Gomillion v. Lightfoot, 364 U.S. 
339 (1960).

The external evidence relating to the enactment 
of the new amendment inescapably points to the 
conclusion that it was conceived, prepared, sub­
mitted for signatures, presented to the voters and



54

enacted with a single purpose in mind—emasculating 
fair housing legislation (at least in the field of indi­
vidual property transactions) and immunizing dis­
criminatory landowners against legal action. In these 
circumstances there is little room for the argument 
that the new amendment does not constitute state en­
couragement of racial discrimination. Property own­
ers have been told in effect that the state law stands 
behind their declination to sell or rent to Negroes or 
members of other minority groups. And this is indeed 
the case. I f  the new amendment stands, there is 
neither a statutory nor common law remedy available 
against racial discrimination in individual housing 
sales and rentals. The Fourteenth Amendment, how­
ever, will not permit state involvement of this charac­
ter in discrimination of so invidious a nature, and for 
that reason alone the amendment cannot constitu­
tionally stand.

G. The Fourteenth Amendment Prohibits California From Dis­
abling Itself From Dealing With Matters of Fundamental 
Government Concern.

We have shown supra, pp. 32-36, that Article I, 
Section 26 completely disables state and local legisla­
tive bodies from acting to prevent discrimination in 
the sale and rental of housing. Similarly, the judiciary 
is precluded by the amendment from developing and 
applying common law principles that in any manner 
limit discrimination of this kind. The amendment in 
one stroke undoes all existing state regulation in this 
field, prohibits future action at any level of state 
government and arbitrarily delegates to private per­



55

sons the sole power to control the discriminatory hous­
ing conditions which contribute to many of Califor­
nia’s serious social problems. But we suggest that the 
strictures of the Fourteenth Amendment may not be 
so easily avoided in matters of basic governmental re­
sponsibility. The purpose of the Fourteenth Amend­
ment was to protect the rights of minority groups with 
respect to activities in which, under our political sys­
tem, the state is expected to play a role. State action 
in this sense is necessarily an expanding concept. Gov­
ernmental responsibility has grown with the prolifera­
tion of complex problems in contemporary life. State 
and individual relationships have more numerous 
points of contact today than in years gone by. The 
Fourteenth Amendment assures the individual that in 
all matters where state responsibility is present, he 
will be accorded equal protection under the law.

As we have shown above in Point II, California is 
scarred by minority group ghettos and segregated 
housing patterns that cause severely harmful effects 
both for the minority groups affected and for the 
public at large. We have further shown, in Point I II  
above, that California has fully recognized the exist­
ence of this problem and its responsibility to deal with 
it. Legislative and judicial activity has steadily in­
creased because of the state’s recognition that housing 
discrimination creates problems of great magnitude 
with which government must deal. In these circum­
stances, the necessity at least for the availability of 
government remedial action cannot reasonably be 
denied.



56

This Court has catalogued the problems that may 
be traced at least in part to discrimination in hous­
ing: “ disease, crime and immorality.”  Burks v. Poppy 
Construction Co., 57 Cal.2d 463, 471 (1962). And in 
Jackson v. Pasadena City School District, 59 Cal.2d 
876, 881 (1963), the Court articulated the impact of 
housing discrimination on the schools of our State: 

“ So long as large numbers of Negroes live in 
segregated areas, school authorities will be con­
fronted with difficult problems in providing Negro 
children with the kind of education they are en­
titled to have. Residential segregation is in itself 
an evil which tends to frustrate the youth in the 
area and to cause antisocial attitudes in behavior. 
Where such segregation exists it is not enough 
for a school board to refrain from affirmative dis­
criminatory conduct. The harmful influence on the 
children will be reflected and intensified in the 
classroom if school attendance is determined on 
a geographic basis without corrective measures. 
The right to an equal opportunity for education 
and the harmful consequences of segregation re­
quire that school boards take steps, in so far as 
reasonably feasible, to alleviate racial imbalance 
in schools regardless of its cause.”

Anyone familiar with the problems of racial imbalance 
in our urban schools realizes that even the most 
imaginative “ corrective measures”  available to school 
boards seeking to comply with the above mandate 
cannot satisfactorily overcome the obstacles presented 
by residential segregation.

The foregoing problems can be dealt with only 
within the traditional police power of the state. Re­



57

sponsibility to deal with those problems carries with 
it logically the responsibility to deal with their social 
causes. The Supreme Court has recognized this:

“ No legislature can bargain away the public 
health or the public morals. The people them­
selves cannot do it, much less their servants. The 
supervision of both these subjects of governmental 
power is continuing in its nature, and they are to 
be dealt with as the special exigencies of the mo­
ment m-ay require. Government is organized with 
a view to their preservation, and cannot devest 
(sic) itself of the power to provide for them. For 
this purpose the legislative discretion is allowed, 
and the discretion cannot be parted with any more 
than the power itself.”  (Emphasis added.) Second 
Slaughter House Case, Butchers’ Union Co. v. 
Crescent City Co., I l l  U.S. 746, 753 (1883). See 
also Home Bldg. & Loan Assoc, v. Blaisdell, 290 
U.S. 398, 442, 444 (1934).59

It is suggested that California may still provide 
other means of alleviating the evils of discriminatory 
housing such as slum clearance programs and subsi­
dies to minorities and hence Article I, Section 26

59The unconstitutionality of the instant disablement is further 
demonstrated by analogy to other illegal disablements of funda­
mental power. For example a state cannot disable its courts from 
hearing and granting relief on federal causes of action. Testa v. 
Katt, 330 U.S. 386 (1947). A government cannot disable its courts, 
even in a wartime emergency, from considering a defense in a 
criminal case that the law being enforced is invalid, unless an 
alternative and effective procedure for reviewing the validity of 
the law is available to the defendant. Yakus v. United States, 321 
U.S. 414 (1944). Similarly, it is extremely doubtful that courts 
could be disabled from exercising the power to issue writs of 
habeas corpus in appropriate cases. See Eisentrager v. Forrestal, 
174 F.2d 961, 965-966 (1949), reversed on other grounds, 339 
U.S. 763 (1950).



58

merely limits tlie Legislature in its choice of remedies. 
The argument misses the mark completely. It ignores 
the fact that acts of private discrimination may be 
precisely “ the special exigencies of the moment” re­
quiring legislative supervision as indeed the Rumford 
Act so recognized. We do not suggest that the Legis­
lature is constitutionally required to pass legislation 
in the nature of a Rumford Act but we do argue that 
it cannot be constitutionally deprived of the right to 
exercise its discretion to do so.

This conclusion also is fully consistent with and 
supported by the assumption made long ago in the 
Civil Bights Cases, 109 U.S. 3, 17 (1883), that redress 
under state law would be available to citizens faced 
with invidious forms of discrimination in their trans­
actions with other individuals.

V. ARTICLE I, SECTION 26 CONSTITUTES AN UNCONSTITU­
TIONAL IMPAIRMENT OF THE RIGHT TO PETITION THE 
GOVERNMENT FOR REDRESS OF GRIEVANCES.

The First Amendment guaranty against abridgment 
of “ the right of the people . . . to petition the Govern­
ment for a redress of grievances”  is applicable 
through the Fourteenth Amendment to the states. 
Brotherhood of B. Trainmen v. Virginia, 377 U.S. 1 
(1964). The right guaranteed is the right to petition 
the government in any of its many forms. The 
Slaughter House Cases, 83 U.S. (16 Fall.) 36, 79 
(1872) (right to petition the legislature); accord, 
Eastern B. Conf. v. Noerr Motors, 365 U.S. 127, 138



59

(1961); Brotherhood of R. Trainmen v. Virginia, 377 
U.S. 1 (1964) (right to petition the courts); see 
Brown, The Right to Petition, 8 U.C.L.A. L.Rev. 729, 
732 (1961). The right to petition, like freedom of 
speech, is a preferred right, a privilege and immunity 
of United States citizenship. Slaughter House Cases, 
83 U.S. (16 Wall.) 36, 79 (1872). As the United States 
Supreme Court said in United States v. Cruikshank, 
92 U.S. 542, 552 (1876): “ The very idea of a govern­
ment republican in form, implies a right on the part 
of the citizens . . .  to petition for a redress of griev­
ances.”

As we have stated, prior to the adoption of the new 
amendment California was in a jjosition to hear the 
grievances of its citizens with respect to discrimina­
tion in housing, and to take appropriate remedial 
action in the exercise of its police powers. Today, how­
ever, as the direct result of Article I, Section 26, Cali­
fornia is precluded from dealing with citizens’ 
grievances relating to discrimination in housing. Cali­
fornia is limited to treating only the symptoms but 
not the source of major social evils. It is analogous to 
allowing the state to provide hospital beds for cholera 
or smallpox victims but disabling it from preventing 
cholera or smallpox through vaccination, or to allow­
ing the state to punish crimes committed by narcotic 
addicts but disabling it from preventing or controlling 
the sale, possession, or use of narcotics.

It may be suggested that persons in California who 
have grievances concerning discrimination in housing 
and its products of crime, disease, immorality, school



60

segregation and impairment of the right to acquire 
property, might still petition for a redress of those 
grievances by constitutional amendment. The pro­
ponents of Proposition 14 then may contend that 
Proposition 14 does not unconstitutionally abridge the 
right of petition because a narrow avenue of relief by 
constitutional amendment is left open.60

In sum, the effort to divest California citizens of 
their right to petition for redress in an area of vital 
governmental concern cannot constitutionally be ac­
complished under the facts involved here. The right to 
petition for redress of grievances presupposes real, not 
imaginary, authority in the state to deal with matters 
properly within its province. Article I, Section 26 of 
thus inconsistent with the most fundamental tenets of 
governmental operation under the federal constitution, 
and cannot stand.

We submit that one principle underlying the lan­
guage quoted from the Second Slaughterhouse case, 
supra, page 57, and similar judicial expressions, is

60Tliere are at least three fundamental weaknesses in such a 
contention: (1) The argument proves to much; all disablements 
would be constitutional under such an argument, since the people 
always would be able to upset them through another constitutional 
amendment. (2) The process of constitutional amendment is too 
costly, time consuming and uncertain. (3) The California Consti­
tution expressly recognizes that the crucial and most important 
right of petition to the government of California is the right to 
petition the California Legislature, the agency that is equipped to 
redress the grievances in a practical, effective and efficient manner. 
Calif. Const. Art. I, Section 10. See Brown, The Right to Petition, 
8 U.C.L.A. L.Rev. 729 (1961). The slow process of constitutional 
amendment is not an adequate substitute for the traditional police 
powers of the Legislature.



61

that the legislature of a state must generally be able 
to respond to the petitions of its citizens on matters of 
vital public concern and that the majority of the 
voters of a state cannot, except in limited instances, 
preclude the legislature from responding to such peti­
tions. Could, for example, a majority of voters pre­
clude the state legislature from interfering with the 
“ absolute right”  of landowners to build structures for 
any use without regard to safety? Could the state 
legislature be precluded from interfering with the 
“ absolute right”  of property owners to discharge such 
substances into the air and/or water as they saw fit?

The answer we submit has been clearly articulated 
by the United States Supreme Court:

“ No legislature can bargain away the public 
health or morals. The people themselves cannot 
do it, much less their servants. Subversion of both 
the subjects of governmental power is continuing 
in its nature, and they are to be dealt with as the 
special agencies of the moment may require”  
(,Second Slaughterhouse case, p. 57).

We do not suggest that a majority of voters by 
initiative measure may never divest a state legislature 
of power over a particular subject,. We submit that 
the right to petition, like other rights contained in the 
First Amendment, is not an absolute right and may 
be curtailed by precluding legislature response to a 
petition when on balance the legislative disablement is 
justified by considerations of public health and morals. 
We submit, however, that where, as here, there are 
present serious social evils and the disablement would



62

prevent the legislature from attacking their source, 
there must be a benefit to the public health and morals 
underlying the disablement which outweighs the detri­
ments to the public health and morals resulting from 
it. We submit that in the instant case, there is no such 
justification for the disablement, and that it cannot be 
said that, on balance, it .is justified by considerations 
of public health and morals.

VI, THE CONSTITUTIONAL DEFECTS IN ARTICLE I, SECTION 
26 RENDER IT COMPLETELY VOID.

The bare language of Article I, Section 26 is not 
specifically directed to racial or religious grounds for 
discrimination, but purports to remove state power to 
act with respect to any declination by the owner to 
sell or rent, whatever his reasons. It may be argued, 
therefore, that the amendment is susceptible to some 
yet undefined constitutional applications and that the 
Court should therefore refrain from declaring it un­
constitutional on its face. While we would have no 
serious objection to the Court’s limiting its decision 
to the unconstitutional aspects of the new amendment, 
we suggest that the amendment, considered in the 
light of its purpose, does not warrant such judicial 
restraint. The constitutional defects we have outlined 
go to the very heart of the measure. The effect of the 
federal Constitution on the amendment is such that 
it is stripped of its substance, and nothing of impor­
tance in terms of its intendment remains. Absent an 
application in the field of racial discrimination, it is



63

plain that there would have been no occasion for the 
amendment to have been proposed.61

A further reason for invalidating the amendment 
as a whole lies in its deterrent effect, in view of the 
breadth of its language, upon the enjoyment of the 
basic constitutional protections against improper dis­
crimination in the acquisition of property. It is well 
settled that when a law affecting constitutional rights 
is drawn so broadly that it discourages the exercise of 
those freedoms by persons fully entitled to do so, that 
law will be struck down in its entirety. Thus, in 
Smith v. California, 361 TT.S. 147, 150-151 (1959), in 
striking down a Los Angeles ordinance imposing strict 
liability on sellers of obscene books, the Supreme 
Court said:

“ Our decisions furnish examples of legal devices 
and doctrines, in most applications consistent with 
the Constitution, which cannot be applied in set­
tings where they have the collateral effect of in­
hibiting the freedom, of expression, by making the 
individual the more reluctant to exercise it . . .  It 
has been stated here that the usual doctrines as 
to the separability of constitutional and unconsti­
tutional applications of statutes may not apply 
where their effect is to leave standing a statute 
patently capable of many unconstitutional appli­
cations, threatening those who validly exercise 
their rights of free expression with the expense 
and inconvenience of criminal prosecution. Thorn­
hill v. Alabama, 310 U.S. 88, 97, 98 . . . Cf. Staub

61See p. 9, supra.



64

v. Baxley, 355 U.S. 313 . . . And this Court has 
intimated that stricter standards of permissible 
statutory vagueness may be applicable to a statute 
having a potentially inhibiting effect on speech ..

See also, Aptheker v. Secretary of State, 12 L.ed. 2d 
992, 1003 (1964) ; Thornhill v. Alabama, 310 U.S. 88, 
97-98 (1940); Carlson v. California, 310 U.S. 106 
(1940).

The breadth of Article I, Section 26 has the inevi­
table effect of deterring members of minority groups 
from seeking remedies for discriminatory practices 
against them in the field of housing. The general word­
ing of the amendment stands as a governmental policy 
favoring a right of landowners to discriminate on any 
ground they choose. The few speculative constitutional 
applications the amendment might have are inconse­
quential in comparison to the evils it was intended to 
perpetuate. The amendment must be struck down 
entirely if  its deterrent effects are to be fully elim­
inated.



65

CONCLUSION

For the reasons stated, this Court should declare 
Article I, Section 26 of the California Constitution to 
be in violation of the federal Constitution and there­
fore completely void.
May, 1965.

Respectfully submitted,
D uane B. B eeson 
Seymour F arber 
R obert H. L aws, Jr.
H oward Nemebovstu, 

Attorneys for Amici Curiae.
Of Counsel:

J oseph B. R obison 
R obert M. O ’Neil 
Ephraim Margolin



S. F. Nos.

22,019, 22,020
In the Supreme Court

OF THE

State of California

Doris R. T homas,
Plaintiff and Appellant,

vs.
G. E. Goulias, et al.,

Defendants and Respondents.

.Joyce Grogan,
Plaintiff and, A ppellant,

vs.
E rich Meyer,

Defendant and, Respondent.

APPELLANTS’ CONSOLIDATED SUPPLEMENTAL BRIEF 
Appeal from the Municipal Court of the 

City and County of San Francisco
Honorable Robert J. Drewes, Judge 
Honorable Leland J. Lazarus, Judge 
Honorable Lawrence S. Mana, Judge

Ephraim M argolin,
683 McAllister Street, San Francisco 2, California,

Marshall W . K rause,
American Civil Liberties Union,

503 Market Street, San Francisco 5, California,

A rnold M. Greenberg,
22 Battery Street, San Francisco 11, California,

R ichard A. B ancroft,
683 McAllister Street, San Francisco 2, California,

Elliott Leighton,
1255 Post Street, San Francisco 9, California,
Attorneys for Plaintiffs 

and Appellants.



Subject Index

I Page
Preliminary statement.................................................................  1

II
Statement of facts in Thomas v. Goulias.................................  3

III
Statement of facts in Grogan v. Meyer ..................................... 6

IV 7
Introduction ..................................................................................

V
Argum ent.......................................................................................  ^

A. No state may constitutionally abdicate all police power
in a major area of the state’s traditional concern------  11

B. Section 26 may be construed to avoid unconstitution­
ality .................................................................................... ^

VI
Conclusion 18



Table of Authorities Cited

Cases Pages
Allied Properties v. Dept, of Alcoholic Beverage Control, 53 

Cal. 2d 141 .............................................................................. 16

Burton v. Wilmington Parking Authority, 365 U.S. 715. . . .  9
Butchers’ Union Co. v. Crescent City Co., I l l  U.S. 746 

(1883) ..................................................................................... 15

Civil Rights Cases, 109 U.S. 3 ................................................... 14

Griffin v. School Board, 377 U.S. 218 ( 1 9 6 4 ) . . . . . . . . . . . . . .  14

In re Cregler, 56 Cal. 2d 308..................................................... 16

Lockheed Aircraft v. Superior Court, 28 Cal. 2d 4 8 1 . . . . . .  15
Lombard v. Louisiana, 373 U.S. 267...............................   9
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713............  15

Shelley v. Kraemer, 334 U.S. 1 . ..........‘ ..............................V. 9
State of California v. Industrial Acc. Comm., 48 Cal. 2d 365 

....................................................   15,16

Truax v. Corrigan, 257 U.S. 312................................................ 9

Codes
Civil Code: '

Section 51 . ............     5,7
Section 52 . . . . . . . ■ ; . . . . . . . .  ■.... > , . . .  .■._____ . . . . ; . .  5, 7

Health and Safety Code:
Section 35710 ...................    7

Constitutions
California Constitution:

United States Constitution:

Texts
Tussman and ten Brock, The Equal Protection of the Laws:

37 Calif. L. Rev. 341 .......................................................
37 Calif. L. Rev. 357-359 ..................................................

13
13



S.F. Nos. 22,019 and 22,020

In the Supreme Court
OF THE

State of California

Doris R. T homas,
Plaintiff and Appellant,

AS.
Gr. E. (ioi l i a s , et al.,

Defendants and Respondents. I

J oyce Grogan,
Plaintiff and Appellant, 

vs.
Erich Meyer,

Defendant and Respondent.

APPELLANTS’ CONSOLIDATED SUPPLEMENTAL BRIEF
Appeal from the Municipal Court of the 

City and County of San Francisco
Honorable Robert J. Drewes, Judge 
Honorable Leland J. Lazarus, Judge 
Honorable Lawrence S. Mana, Judge

I
PRELIMINARY STATEMENT

The reach and validity of Section 26 of Article I 
of the Constitution of the State of California1 are

’ Added by the voters on November 3, 1964, by an initiative 
measure known as Proposition 14.



2

the major issues raised in the two cases here on ap­
peal. These issues are common to all the cases dealing 
with Section 26 and, since the posture of our cases 
neither allows nor requires the filing of full briefs2 
we have limited ourselves to arguments not previously 
treated.3 We have also attached as an appendix to 
this brief an affidavit admitted in evidence in the 
municipal court at the time motions to dismiss were 
heard.

The attorneys for the California Real Estate Asso­
ciation, amicus curiae, suggest that the judgments in 
these cases could be reversed if Section 26 is inter­
preted so as not to affect causes of action which ac­
crued prior to its enactment. However, appellants are 
Negroes. Therefore this litigation does not raise for 
them only the narrow issue of whether they can pro­
ceed to trial of the instant suits; it raises for them 
the overriding issue of whether in the future—as their 
personal needs change—they may have an open oppor­
tunity in the housing market, or will they remain con­
fined to narrow areas where the non-Negro majority 
thinks they should live? For this reason counsel 
would not be serving the true interest of their clients 
if we did not urge this Court to first decide the broad 
issues of the constitutionality of Section 26 and its

2Both cases are before this Court after certification to the 
District Court of Appeal from the Appellate Department of the 
Superior Court. Briefs filed with the Municipal Court are a part 
of the record in these cases.

3As to other arguments, we join in the position taken by- 
Messrs. Beeson, Barber, Laws and Nemerovski and Caldwell, 
Wirin, Okrand, Ball & Selvin.



3

reach which, in turn, may make it unnecessary to 
decide the narrower issues.

II
STATEMENT OF FACTS IN THOMAS v, GOULIAS

The facts as proven at the first trial of this case 
show that plaintiff, Doris Thomas, accepted a job 
with the Bay Area Urban League as a community 
organization specialist. She began to search for a 
four-room, unfurnished apartment. For two weeks she 
had continuously and unsuccessfully searched for an 
apartment. Suspecting that the reason for her failure 
to obtain accommodations might have been the result 
of racial discrimination, the plaintiff secured the as­
sistance of a Caucasian friend, Charlotte Krause, a 
social worker with the Department of Mental Hygiene. 
On May 28, 1962, the plaintiff had secured a listing 
from a rental agency indicating that a four-room (one 
bedroom) apartment was available at 2899 Washing­
ton Street, in the City of San Francisco, in a building- 
owned and operated by the defendants. When plain­
tiff and Mrs. Krause arrived at this apartment house, 
there was a rental sign in the window. Mrs. Krause 
went into the building to inquire as to the apartment. 
She met the defendants, looked at the apartment, was 
told that, it was available, and having excused herself 
returned to report to the plaintiff who was waiting in 
Mrs. Krause’s automobile downstairs. Within minutes 
thereafter Miss Thomas went into the apartment



4

building, spoke with the defendants in the apartment 
and was told by them that the apartment had been 
rented and that, in fact, a deposit on that apartment 
had been accepted. Presently, the plaintiff and Mrs. 
Krause returned to the apartment together and con­
fronted the defendants. The defendants volunteered 
that plaintiff should not want to rent where she was 
not wanted. One defendant stated that he didn’t mind 
working with Negroes, but he didn’t want to live with 
them and that he was fearful that other tenants might 
move out if  a Negro were allowed in the building.

The testimony of the defendants was to the effect 
that they had told both Mrs. Krause and the plaintiff 
that the apartment was not then available, that they 
had had a prospective tenant who had been promised 
the apartment, and that in the event this particular 
prospective tenant did not take the apartment, then 
they would consider Mrs. Krause or the plaintiff for 
the tenancy.

It subsequently developed that this prospective ten­
ant was an employee of the defendants, had not given 
the defendants a deposit, did not wish a four-room 
apartment because he had several children and, in 
fact, finally rented a three-bedroom apartment.

Within a short period after the defendants had re­
fused to rent the apartment to her, the plaintiff 
developed an ulcer.

A  complaint was filed in the Municipal Court, in and 
for the City and County of San Francisco, on August 
27, 1962, asking for relief under California Civil



5

Code Sections 51 and 52. Depositions of the defend­
ants and the plaintiff were jointly taken on Decem­
ber 4, 1962. A  jury trial was held in the Municipal 
Court in San Francisco on January 15,1964, before the 
Honorable Albert A. Axelrod. A  jury, consisting of 
citizens of diverse racial characteristics, different 
backgrounds and various occupations (including an 
apartment house owner, and a business man whose 
income depended upon apartment house owners) was 
impaneled and heard the evidence. A unanimous ver­
dict was returned in favor of plaintiff and awarded the 
plaintiff the sum of one thousand dollars ($1,000.00) 
by way of general damages and two hundred fifty 
dollars ($250.00) by way of statutory damages,4

The defendants thereafter made their motion for 
a new trial. The Honorable Albert A. Axelrod then 
determined that the evidence did not justify the ver­
dict for general damages in the sum of one thousand 
dollars ($1,000.00), and thereupon ordered a new trial 
unless the plaintiff should accept the lesser sum of 
two hundred fifty dollars ($250.00) by way of general 
damages and statutory damages in the sum of two 
hundred fifty dollars ($250.00) for a total of five hun­
dred dollars ($500.00). The plaintiff declined the re­
mittitur of the court ordered a new trial.

On November 20, 1964, defendants filed their Motion 
to Strike First Amended Complaint of the plaintiff,

*The Court had instructed the fury that the statutory language 
of Civil Code Sections 51 and 52 in regard to the sum of two 
hundred fifty dollars ($250.00) had in fact placed a maximum 
amount of recovery of punitive damages and that the jury could 
not return punitive damages in excess of two hundred fifty dollars 
($250.00).



6

which motion was denied without prejudice to the 
defendants to refile the motion upon the same docu­
ments forwarded in support of that motion, at a date 
subsequent to certification by the Secretary of State of 
the passage of Proposition 14 by the electorate of the 
State of California. That same Motion to Strike was 
then refiled by the defendants on December 14, 1964. 
The motion was granted by a three-judge bench of 
the Municipal Court on March 1, 1965, and on March 
2, 1965, the judgment of the trial court was entered 
in favor of defendants. A  notice of appeal was filed 
to the Appellate Department of the Superior Court 
and that court affirmed the judgment of the trial 
court but certified the case to the District Court of 
Appeal. That court accepted the certification and this 
court then transferred the case to itself and granted 
permission to file this Supplemental Brief.

I l l
STATEMENT OF FACTS IN GROGAN v. MEYER

On June 13, 1963, plaintiff Joyce Grogan filed her 
complaint for damages in the Municipal Court of the 
City and County of San Francisco. The complaint 
alleged that on May 11, 1963, there was vacant and 
offered to the general public for rental one apartment 
unit in a four-unit apartment house owned by the 
defendant, and that plaintiff desired to rent the apart­
ment on the terms offered by defendant. The plaintiff 
alleged she was denied the rental solely because she



is a Negro and that defendant followed a policy of 
denying to all Negroes the right to occupy any prop­
erty owned or managed by him. Plaintiff prayed for 
general and punitive damages in the sum of $3,250.00 
under Civil Code sections 51 and 52 and Health & 
Safety Code section 35710. Defendant answered ad­
mitting that he was in the business of renting units 
to the general public, but denying the other allega­
tions of the complaint.

The ease was scheduled for trial on November 23, 
1964. On November 3, 1964, the voters of California 
approved Proposition 14 adding Section 26 to Article 
I of the California Constitution. On November 17, 
1964, defendant filed a “ Motion to Dismiss Action” 
because of the “ repeal”  of the statutes upon which 
the causes of action were based. The essence of the 
motion was that even if plaintiff’s complaint was true, 
the law no longer provided a remedy for her damages. 
This motion was granted by a three-judge bench of 
the Municipal Court on March 1, 1965, and on March 
2, 1965, judgment was entered in favor of defendants. 
The other facts in regard to this case are identical 
with the facts stated in the preceding section concern­
ing Thomas v. Goulias.

IY
INTEODUCTION

Seldom do cases arise in a court of law so signifi­
cant to the welfare of a state as the seven entries 
on this Court’s docket which will seal the fate of



8

Section 26. This shrewdly conceived counter-revolution 
in civil rights only waits confirmation before it sweeps 
the rest of the nation. It comes to this Court dis­
guised in semantics of “ neutrality” and “ majority 
rights” . It proceeds not on the merits of good deeds 
but on the protestation that it gives no aid to the 
harms which inevitably form in its wake.

Section 26 employs the cloak of “ state neutrality”  
to disguise obvious state intervention. It was falsely 
advertised as restorative of pre-Rumford “ rights” 
when in fact its gist was never limited to Rumford 
Act and its aim was to enact a grant of affirmative 
“ rights”  never before known in the United States, 
an absolute power immune to legislation and adju­
dication and impervious to the adjustments tradi­
tional to a common law heritage. It purported to 
eliminate only such state acts as the state was under 
no duty to enact in the first place though in fact, it 
goes for the jugular of state power to enforce any 
remedies at all. Its supporters now urge the Court to 
accept in good faith the argument that the section 
does not eliminate all state powers, although it clearly 
eliminates all effective state powers. Further, the 
Court is assured that the technical route of Constitu­
tional Amendment remains open when in practice, it 
is known that there are no vested interests on the 
side of the minorities wealthy enough to mount a 
repeal initiative. Finally, the Court is told that since 
there is no federally protected right to purchase or 
rent from individual owners the State has no duty to 
enforce the right of rental and acquisition where



9

pervasive custom creates a clearly recognized pattern 
of de facto zoning. W e submit that this very shrewd­
ness in semantic manipulation highlights the real pur­
pose of the section: to encourage and sanction segrega­
tion in residential housing without appearing to do 
so.

Proponents of Section 26 use two expedients to ac­
complish this aim. First, as above stated, Section 26 
is so drafted as to sanction and re-enforce discrimina­
tion in residential property without appearing to do 
so. Second, its proponents urge narrow construction 
for the body of available precedent under the Four­
teenth Amendment, treating the eases as social statics 
limiting rather than expanding the reaches of the 
Equal Protection clause. But Equal Protection is an 
evolving concept. When first confronted with the pri­
vate restrictive covenant agreements it expanded to 
produce Shelley v. Kraemer, 334 U.S. 1. In response 
to specific factual situations it produced Truax v. 
Corrigan, 257 U.S. 312; Burton v. Wilmington Park­
ing Authority, 365 U.S. 715, and Lombard v. Louisi­
ana, 373 U.S. 267. It does not merely spin formal 
restatements of established protection but evolves rem­
edies to meet ever new realities. The Court stated 
in Burton that “ to fashion and apply a precise 
formula for recognition of state responsibility under 
the Equal Protection Clause is an ‘ impossible task’ 
which ‘ This Court has never attempted.’ (citations). 
Only by sifting facts and weighing circumstances can 
the non-obvious involvement of the State in private 
conduct be attributed its true signifianee.”  (365 U.S. 
at 722.)



10

Appellants contend that Section 26 encourages dis­
crimination and must fall under the doctrines of the 
above cited cases. Appellants also contend that Sec­
tion 26 constitutes an abdication of state functions 
in conflict with a theory of State responsibility and 
individual rights implicit in the due process clause 
of the Fourteenth Amendment. In the alternative, 
we submit that if  Section 26 is strictly construed in 
accordance with California law its own wording would 
leave in full effect the California policy of anti- 
discrimination in housing.

Prior to the hearing on the motion to dismiss plain­
tiffs’ first amended complaints, plaintiffs offered in 
evidence an affidavit of Earl David Raab, one of the 
most accomplished and respected sociologists in Cali­
fornia. This affidavit, which is reproduced as an 
appendix to this brief, was accepted in evidence by 
the court below. No counter affidavit was filed. 
Neither was Mr. Raab’s testimony refuted or, indeed, 
questioned. This evidence is not hearsay but direct 
testimony under penalty of perjury backing up the 
scholarly research reproduced in other briefs in this 
case. It establishes in unimpeached and unimpeach­
able terms the pervasive custom and continuing pat­
tern of discrimination in residential housing afflicting 
California.



11

V
ARGUMENT

A. NO STATE MAY CONSTITUTIONALLY ABDICATE ALL 
POLICE POWER IN A MAJOR AREA OF THE STATE’ S 
TRADITIONAL CONCERN.

Residential ghettoes in California are the result of 
the custom of housing discrimination which has 
existed over a period of many years. Government 
inactivity nurtured the custom, supporting the badge 
of racial inferiority inherited from days of slavery. 
The state became, in large part, zoned for discrimina­
tion, and zoning by individuals who operate within 
the framework of a custom of discrimination is as 
effective in its results as zoning enforced by the law. 
The fact that after 1959 California began to retreat 
from allowing private individuals to zone the state 
into slums, crime, poverty and segregation establishes 
formal recognition of the danger inherent in this cus­
tom. W e need not reach the question of whether even 
in the absence of such specific legislation the state 
did not have the affirmative duty to neutralize the 
custom of segregation in some manner. Suffice it to 
state that once such recognition was clearly established 
(on the legislative, judicial and executive levels as 
well as by administrative and local action) the state 
could no longer disclaim all responsibility to act.

Assuming that California was under no Fourteenth 
Amendment duty to enact a specific legislative meas­
ure to end private discrimination in residential hous­
ing, it was free to amend its existing measures, both 
to increase and to decrease their strictures. But Sec­



12

tion 26 does not amend given laws; it repeals the 
process of action. It creates a vacuum of police power 
on a state-wide level. It deprives all local authorities 
of their power to meet and to solve problems at­
tendant on segregation which arise from the bedrock 
of housing discrimination. It delegates the right to 
zone on racial lines to owners, brokers and developers.5 
This is not merely the silence of the crowd which wit­
nesses rape without stirring from their seats; this is 
an official pronouncement that as a matter of public 
policy and constitutional doctrine the state will not 
punish rape on the ground that- it is committed by 
private parties. Within the realities of California, 
Section 26 amounts to a State declaration that in the 
midst of lawlessness and in the teeth of a rape epi­
demic the state abdicates its power to enforce anti- 
rape measures and declares itself “ neutral”  on the 
subject of rape in general, leaving the decision in each 
particular case to the absolute discretion of the poten­
tial rapist.

In reality, the state does not remain “ neutral” in 
the situation described above, but by its expression of 
a policy of non-interference delegates authority to 
commit crimes to those strong enough to accomplish 
the act. Protection of the weaker part of society is 
left to the discretion of the stronger and the more 
violent. I f  such elements were also numerically larger 
they could readily vote in a “ neutral”  state policy

5Despite arguments of amicus that Section 26 does not apply 
to brokers, the words “ directly or indirectly” in Section 26 leave 
this question unresolved.



13

toward crimes of violence. However, the due process 
clause of the Fourteenth Amendment protects each 
citizen against the deprivation of life, liberty and 
property. When it comes to basic rights, abdication 
of governmental responsibility to protect the minority 
against the majority is abdication of state responsi­
bility forbidden by the Fourteenth Amendment. Given 
the existing pattern of racial discrimination in hous­
ing in California, the result of abdication is clear and 
inevitable and a state responsibility. As stated in 
Tussman and ten Broek, The Equal Protection of the 
Laws, 37 Calif. L. Rev. 341:

“ We now know that the equal protection clause 
. was designed to impose upon the states a positive 

duty to supply protection to all persons in the 
enjoyment of their natural inalienable rights— 
especially life, liberty and property—and to do 
so equally.”

and again (at pp. 357-359) :
“ . . . the prohibition against discriminatory legis­
lation is a demand for purity of motive. It erects 
a constitutional barrier against legislative mo­
tives of hate, prejudice, vengeance, hostility or, 
alternatively, of favoritism and partiality. The 
imposition of special burdens, the granting of 
special benefits, must always be justified. They 
can only he justified as directed against the elimi­
nation of some social evil, the achievement of some 
social good. When and if the proscribed motives 
replace a concern for the public good as the ‘pur­
pose’ of the law, there is a violation of the equal 
protection prohibition against discriminatory leg­
islation,”  (Emphasis added.)



14

Let us assume a hypothetical nightmare. Em­
boldened by their success in passing Proposition 14, 
the voters of California by a two to one majority, 
continue the trend by abolishing the Pair Employ­
ment Practices Act and the power of the state to ban 
discrimination in employment. Without straining the 
precedent set by Section 26, the “ badges of slavery”8 
are now further extended to isolate the Negro citizen 
from his community. The next steps could be to 
abolish public education, which is not beyond the 
realm of reality since it was tried in the Prince 
Edward County, Virginia.7 This may be followed by 
the abolition of unemployment insurance, public wel­
fare and public health measures because the majority 
thinks it does not profit by them. The “ hypothetical 
nightmare”  is simply an extension of forced abdica­
tion of the state’s functions, to terrible lengths.

But even if we postulate a not so hypothetical 
nightmare, the results will remain equally unaccep­
table. Assume that as a direct result of the passage 
of Section 26, Negroes become even more confined. 
With the expansion of their population, unconscion­

eThe term “ badges of slavery”  comes from the dissenting opin­
ion of Mr. Justice Harlan in the Civil Rights Cases, 109 U.S. 3, 
26, 35. Harlan’s superb argument asked, concerning slavery: 
“ Was it the purpose of the Nation simply to destroy the institu­
tion, and then remit the race, theretofore held in bondage, to the 
several States for such protection, in their civil rights, necessarily 
growing out of freedom, as those States, in their discretion, 
might choose to provide? Were the States against whose protest 
the institution was destroyed, to be left free, so far as national 
interference was concerned, to make or allow discriminations 
against that race, as such, in the enjoyment of those fundamental 
rights which by universal concession, inhere in a state of free­
dom?” 109 U.S. at 35, emphasis added.

7See Griffin v. School Board, 377 U.S. 218 (1964) holding the 
abolition unconstitutional.



15

able overcrowding follows. The overcrowding results 
in even more severe alienation from society, loss of 
self-esteem, and loss of faith in the institutions of our 
society. As a matter of course, disease, crime and 
mental illness increase. Schools fail adequately to 
educate and to inculcate values of western civilization. 
Even menial jobs become scarcer. The fabric of so­
ciety wears to the breaking point. I f  the state remains 
“ neutral”  in the face of such conditions it threatens 
its own existence and raison d’etre. A  state cannot ab­
dicate its powers in a key area of society concern. The 
Equal Protection Clause and the Due Process Clause 
alike, compel this conclusion, and it follows that the 
state cannot destroy its ability to act when the hour 
demands it. “ No legislature can bargain away the 
public health and the public morals”  said the Court 
in the second Slaughter House Case.8 “ The people 
themselves cannot do it, much less their servants,” 
Ibid.

B. SECTION 26 MAY BE CONSTRUED TO AVOID 
UNCONSTITUTIONALITY

Generally, courts do not strain to reach constitu­
tional issues. I f  there are two constructions of an act, 
one of which will raise grave constitutional questions 
and the other of which will not, then the latter is to 
be preferred. (See Lockheed Aircraft v. Superior 
Court, 28 Cal. 2d 481, 484; State of California v. In-

sButchers’ TJnion Co. v. Crescent City Co., I l l  U.S. 746, 753 
(1883). See also Chief Justice Warren for the Court in Lucas v. 
Forty-Fourth Gen. Assembly, 377 U.S. 713, 736-737:

“ A citizen’s constitutional rights can hardly be infringed 
simply because a majority of the people choose to do so.”



16

dustrial Acc. Comm., 48 Cal. 2d 365, 371; Allied Prop­
erties v. Dept, of Alcoholic Beverage Control, 53 Cal. 
2d 141, 146; In re Cregler, 56 Cal. 2d 308, 311.) Ap­
plying this rule to Section 26, we find one construction 
which would leave in effect existing statutes regulat­
ing discrimination in housing but prevent their ex­
pansion. The alternative is to hold that Section 26 
creates a new right to discriminate in housing, raising 
the panoply of constitutional defects. The construc­
tion avoiding constitutional issues arises from the 
language of the amendment itself.

Section 26 is couched not in terms of an affirmative 
grant of power but in terms of denial of the power of 
the state, its agencies and subdivisions to limit, deny 
or abridge the right of a willing owner to decline to 
sell his property to such person or persons as he, in 
his absolute discretion, chooses. “ The right”  itself is 
not defined in the section. The frame of reference 
for defining “ the right”  must be found either in the 
section itself, in which case the section clearly grants 
new rights not hitherto available to anyone in the 
United States, or the reference must be found in the 
right to decline to sell as it existed at the time 
when the section was adopted. The third construc­
tion, urged by the C.R.E.A. at page 12 of its amicus 
curiae brief, is that the operative reference is to 
the pre-Rumford pre-Unruh Act period, or to 1959. 
This construction is no more supported in the section 
itself than some other arbitrary date, such as 1859.

Since the reference to the right is never located 
in time, the most logical meaning to be given the



17

words is that they refer to the time at the adoption 
of the section. It follows that Section 26 prohibits 
governmental intervention with the right as it was 
then known and existing, and as it was then cir­
cumscribed by law. Thus, since the right to decline 
to; sell was limited in 1964 not only by powers jof 
eminent domain and by the power of the equity 
courts to order specific performance, but by the 
Unruh and Rnmford Acts, the absolute discretion of 
the owner after the passage of the section must be 
identically limited. True the section seems to spe­
cifically “ re-create”  the power of eminent domain, 
but it makes no reference to specific performance. 
Surely there is still the power to force a seller to 
specifically perform his contract even though, after 
discovering the race of the buyer, he is no longer will­
ing to sell to him. Similarly the Rumford and Unruh 
Acts were also existing limitations on the right and 
they also remain undisturbed.

What Section 26 actually accomplishes is to pro­
hibit additional governmental limitation of the right 
as in existence at the adoption of Section 26. Thus 
the widening of the Unruh Act to prohibit discrimi­
nation against families with children, or the extension 
of the Rumford Act to single unit dwellings is pro­
hibited and the owner has absolute discretion to deny 
on these grounds since they were not part of the right. 
The evident intention of the drafters of Section 26 
to nullify the Rumford Act by implication must fail, 
since it is not supported by the language of the 
section. The ballot argument can cure ambiguities in 
an amendment, but it cannot add language.



1 8

The alternative construction of the right means that 
the property owner derives his “ right”  to discriminate 
on the ground of race solely from Section 26. The 
underlying anti-discrimination measures are not re­
pealed, but the State Constitution now creates a de­
fense for the owner.9 This is not the absence of 
law but state action in violation of the Fourteenth 
Amendment.

V I
CONCLUSION

For the reasons stated, Section 26 ought to be de­
clared either void in its entirety as in conflict with 
the Fourteenth Amendment or not applicable to suits 
brought under the Unruh and Rumford Acts.

Dated, June 4, 1965.
Respectfully submitted,
Ephraim Margolin,
Marshall W. K rause,
A rnold M. Greenberg,
R ichard A. B ancroft,
Elliott Leighton,

Attorneys for Plaintiffs 
and Appellants.

8It would seem that no matter what the reach of Section 26, a 
defendant in an Unruh or Rumford Act case could waive its 
effect by not raising it as a defense.

(A ppendix A  Follow s)



Appendix A



Appendix A

Arnold M. Greenberg,
22 Battery Street,
San Francisco, California,
Telephone: YUkon 6-0670,

Ephraim Margolin,
683 McAllister Street, Civic Center,
San Francisco, California 94102,
Telephone: JOrdan 7-4929,

Attorneys for Plaintiff

In the Municipal Court of the State of California, 
in and for the City and County of San Francisco

No. 477388

Doris R. Thomas,
Plaintiff,

vs.
Gf. E. Gfoulias, Kostas Paxinos, Thes- 

pina Paxinas,
Defendant.

A FFID A V IT IN SUPPORT OF BRIEF 
IN OPPOSITION TO MOTION TO STRIKE 

Earl David Baab, being first duly sworn, deposes 
and says:

I
Your affiant resides at 677 Sanchez Street in the 

City and County of San Francisco. I  am Chief Con­



sultant to the Social and Economic Committee of the 
Social Welfare Board of the State of California; Staff 
Consultant to the Survey Research Center of the Uni­
versity of California; and Associate Director of the 
Jewish Community Relations Council. I hold a de­
gree of Bachelor of Arts from the City College of 
Hew York. I have made virtually a lifelong study of 
social and sociological problems relating to racial and 
religious discrimination, in housing and otherwise; to 
patterns of poverty; and to the sociological problems 
of crime, delinquency, unemployment and other con­
sequences related thereto. I  have particularly concen­
trated my attention on these problems as they exist in 
California.

II
I  am author, coauthor or editor of many books and 

articles in this and related fields; a lecturer in this 
field at the University of California and other colleges 
and universities in this State; and a former member 
of the faculty of San Francisco State College, in the 
Department of Sociology. Among the books which I 
have written, cowritten or edited in this field are:

A. Raab and Selznick, MAJOR SOCIAL PROB­
LEMS (Harper and Row, 2d Ed., 1964), a standard 
college textbook used by the University of California 
and other colleges and universities in this State;

B. Raab and Folk, T he P attern of Dependent 
P overty in California (State of California, 1963), a 
study made for the Welfare Study Commission of the 
State of California;

ii



I l l

C. AMERICAN RACE RELATIONS TODAY 
(Doubleday and Company, 1962) ;

D. Raab and Lipset, P rejudice and the Com­
munity (Anti-Defamation League, 2d Ed., 1963).

I l l
Your affiant has no personal interest in this lawsuit, 

I  have been informed by counsel of the general con­
tentions of the parties and the subject matter of this 
litigation, however, and am deeply concerned by the 
information that defendant has argued that he is 
privileged under the organic laws of the State of Cali­
fornia freely to discriminate against the plaintiff (a 
Negro) in connection with the sale or rental of hous­
ing on the ground that Proposition 14, which was ap­
proved by the voters of the State at the last election, 
permits him legally to engage in such discrimination. 
I  am not especially trained or competent to render any 
opinion whether this contention reflects a proper inter­
pretation of Proposition 14, or whether (if it does) 
Proposition 14 is valid under the Federal Constitu­
tion. In light of my professional positions, training, 
studies, writings and activities referred to above, how­
ever, and the knowledge thereby gained, I  do believe I 
am especially trained and competent to conclude that 
if  Proposition 14 does permit such discrimination, it 
would have the most serious and adverse consequences 
upon the health, morals and welfare of the people of 
California generally.



IV

As Chief Consultant of the Social and Economic 
Committee of the Social Welfare Board of the State 
of California, and as coauthor of the above-noted 
study prepared for the State Welfare Study Commis­
sion, I  have made personal inquiry and investigation 
on behalf of the State, and (with the aid and assist­
ance of staff personnel supplied by the State) have in­
vestigated and prepared recommendations for the So­
cial Welfare Board and the Welfare Study Commis­
sion with respect to patterns of dependent poverty and 
discrimination within the State. In addition, as author, 
coauthor or editor of the works referred to above, and 
lecturer and educator in this field, I  have become 
familiar with all of the literature dealing with these 
and related problems. I have therefore been able to 
form conclusions with respect to these problems based 
upon a combination of extensive personal investigation 
and academic research. These conclusions are as fol­
lows:

A. There is in fact a well established pattern and 
custom of segregation in housing, and in the sale and 
rental of real estate, within the State of California. 
This pattern of segregation particularly limits the 
housing available to Negroes. The pattern of segrega­
tion is recognized, adhered to, and perpetuated not 
only by private home owners but, far more im­
portantly, by the commercial enterprises operating in 
the housing field, i.e., real estate brokers, builders, tract 
developers, lending institutions, etc. Brokers, builders, 
developers and lenders believe they are under tremen­

I V



V

dous pressure, from their fellow brokers, builders, 
developers and lenders, as well as from home owners, 
not to be “ the first”  to sell property in a white neigh­
borhood to non-whites in general and Negroes in par­
ticular.

B. The Negro population in California is rising 
more rapidly than any other major population seg­
ment. It increased from about two per cent of the 
population in 1940, to four per cent of a larger popu­
lation in 1950, to six per cent of a still-larger popula­
tion in 1960 and today stands at about one million 
persons.

C. Because of the combination of segregation in 
housing, and the rapid growth in the number of 
Negroes living within this State, many Negroes are 
forced to live in highly congested and almost entirely 
Negro communities. A Negro, with only rare excep­
tions, can move into only two types of neighborhoods: 
(i) a neighborhood which already is substantially all 
Negro, or (ii) a neighborhood which is “ marginal”  
and already has a “ mixed”  (non-white) status. As the 
Negro population increases, the “ mixed” or “ mar­
ginal”  neighborhoods also tend to become substantially 
all Negro, however, since there is so little other choice 
available to Negroes. Because the increase in Negro 
population has substantially exceeded the increase in 
living areas into which Negroes can move, the “ Negro 
neighborhoods”  frequently become highly congested as 
well as substantially all-Negro.

I). Many Negroes are in low income brackets. In 
1960, the median income for a white California male



VI

was over $5,000; for a non-white male, it was 30 per 
cent less ($3,500). Only nine per cent of the white 
families in the State had incomes under $4,000. Almost 
40 per cent of the non-white families earned less than 
that. Negroes on the average did even worse than- 
non-whites as a group. As a practical matter, of econ­
omics, many Negroes therefor would not in any event 
have complete freedom to find housing wherever they 
choose. Nevertheless, the pattern of segregation which 
prevails in this State has resulted in substantial ad­
ditional restrictions upon the areas in which Negroes 
can find housing. It thereby has greatly compounded 
an already serious problem.

E. In addition many Negroes believe that, because 
of the aggregation, a Negro cannot find low-priced or 
even middle-priced housing outside certain very lim­
ited areas. As a result, many Negroes who might other­
wise have the incentive to increase their income, in 
order to improve their housing, have become resigned 
to the belief that they could not substantially improve 
their housing by increasing their income within any 
feasible limits. Consequently, these people often do not 
have one of the prime incentives available to most 
white people for increasing their income.

F. Because a disproportionately large number of 
Negroes must find whatever housing they can within 
very restricted geographic areas, as a result of the pat­
tern of segregation prevailing in this State, the hous­
ing conditions in the “ Negro section”  often create 
very serious health problems. This is due to the fact,



among others, that many people are crowded into un­
duly small spaces without sufficient room, air or sani­
tary provisions.

Gl. The very high concentration of people within 
relatively small areas contributes measurably to the 
fact that exceptionally high rates of crime and juvenile 
delinquency prevail in crowded “ Negro”  areas. This is 
true within overcrowded housing areas generally but 
appears more particularly to be of special magnitude 
within the overcrowded areas in which Negroes are 
forced to live.

H. The incidence of crime and juvenile delin­
quency, which is largely attributable to the conditions 
of racial segregation, and concomitant overcrowded 
housing conditions, is increased by the psychological 
effect of segregation and discrimination. The Negro in 
overcrowded Negro areas typically believes that he has 
little, if  any, chance of bettering himself or moving 
outside the closed Negro society which the segregated 
housing patterns has imposed upon him. A  frequent 
result is a feeling of alienation from the legal and 
moral mandates of “ white society”  from which the 
Negro feels he is excluded.

I. The crime and juvenile delinquency “which is 
bred in these areas naturally extends beyond the 
Negro community. Criminal acts are committed 
against members of the entire community. In addition, 
the entire community is required to pay the costs, of 
additional police protection, and prison and correc­

vii



tional facilities, which is very substantial in amount 
and growing annually.

J. Furthermore, most Negro children in over­
crowded Negro neighborhoods find themselves in pub­
lic schools which typically are entirely or almost en­
tirely Negro in composition. Thus housing segregation 
inevitably tends to create wdiat is sometimes referred 
to as “ de facto”  segregation in the public schools.

K. As a very general proposition, most Negro chil­
dren from overcrowded Negro neighborhoods attend­
ing almost entirely Negro public schools do not per­
form competitively with white children generally, or 
with Negro children who are able to attend schools 
which are not predominantly Negro in composition. 
This seems to be due to many factors, including the 
lack of room and quiet to study at home and the gen­
eral feeling of alienation against the mores of a white 
society caused as a result of segregation and discrim­
ination; these are not the only causes of poor perform­
ance in school but they are very important contribut­
ing factors.

L. In any event, there is nearly twice as great a 
percentage of non-white Californians over 25 years of 
age who have not even finished eight grades of school 
(27 per cent) than is true of white Californians (14 
per cent) ; and sixty per cent of the non-white popula­
tion has not finished high school (compared to 47 per 
cent of the white population).

M. As a result of poor education, most Negroes 
coming from overcrowded housing areas have not been

viii



IX

equipped to obtain good employment opportunities. 
They consequently are frequently forced to remain in 
the low income brackets, and are subject to far greater 
risks of unemployment.

Nearly 30 per cent of California’s white males held 
professional, technical, managerial or proprietary posi­
tions in 1960. Only seven per cent of the Negro males 
held such jobs. On the other hand, only 11 per cent of 
the white males were private household or service 
workers, or non-farm laborers. Over 33 per cent of the 
Negro males held such positions. Unemployment sta­
tistics are equally revealing. In 1960, the percentage of 
California’s experienced non-white males who were un­
employed was nearly twice as great (10.8 per cent) as 
the percentage of experienced white males (5.7 per 
cent); and the unemployment ratio for Negroes un­
doubtedly was greater than the ratio for “ non-whites” 
as a whole. These figures reflect hiring discrimination 
based on race, as such, as well as the results of unequal 
educational opportunities; but there can be little doubt 
that unequal education is an important contributing 
factor. On a national basis, unemployment (irrespec­
tive of race) is twice as high (about 9 per cent) for 
those who did not finish high school as it is (4 per 
cent) for those who did, and over four times as great 
as the unemployment rate (2 per cent) among those 
who had at least some college education.

N. The low and irregular income patterns prevail­
ing as a result of poor education and job discrimina­
tion tend to perpetuate and intensify the patterns of



X

housing segregation already established. In addition, 
the community generally loses the potential of valuable 
contributions which many of these people could make 
if they were equally trained at the outset.

Q. A  further result of all the foregoing causes is 
that many Negroes, to a greater extent than white 
people, appear to require and utilize unemployment 
and welfare assistance from the State. This, of course, 
must be supported by the entire community. The costs 
of these payments (about $750,000,000 per year) is 
quite substantial and increasing annually.

P. Finally, in a few instances (particularly during 
the last y ear), these conditions have been important 
contributing factors in touching off acts of crime, vio­
lence and vandalism in cities such as New York, Phila­
delphia and Buffalo. By creating a nation apart, segre­
gation engenders hatred and hatred engenders vio­
lence. Your affiant does not conclude that this is in­
evitable but it is one further danger which is probably 
attributable, at least to a substantial degree, to segre­
gated housing and racial discrimination.

V
The statistical data set forth above are derived from 

the study which your affiant and Hugh Folk prepared 
for the Welfare Study Commission of the State of 
California, referred to in paragraph I I  B. A copy of 
the study is attached hereto,* and by this reference

*[The study is not reprinted here but was appended to the 
original filed affidavit and was served on respondents. The study 
will be found in the file of these cases.]



XI

made part hereof as if set forth in full. The study does 
not necessarily represent the official views of the State 
Commission. The Comission did cause its publication 
at State expense, however, and Governor Edmund Gf. 
Brown drew upon the material cited in the study for a 
statement on Social W  elf are which he sent to the Leg­
islature in 1963. Your affiant cannot, of course, affirm 
under oath that each or any particular figure in the 
statistical compilations is absolute or precise. The 
statistical information was compiled as carefully, con­
scientiously and accurately as possible, however ; and, 
subject to statistically acceptable margins of error, 
your affiant is informed and believes, and based on 
that information and belief affirms, that the statistical 
information in the study is correct.

V I
The heart of the matter may well involve social and 

psychological motivations. The great national concern 
today, as embodied in the Economic Opportunity Act 
of 1964, passed by the recent Congress, is with the 
urgency of raising motivational levels within the 
“ ghettoes”  of our nation. Communities in California 
are planning to expend many millions of dollars in 
the coming months in an attempt to break open some 
exit gates in those “ ghettoes.”  But the rationale of the 
Economic Opportunity Act is that facilities for up­
grading skills, or upgrading education, no matter how 
many or how good, will not fall on fertile ground if 
the motivations of the young people in these “ ghet­
toes”  are not engaged.



There is substantial evidence that the personal moti­
vations of young Negro people are not lagging. That 
is, studies show that their aspirations are substantially 
as high as the aspirations of the general population. 
But there is a serious gap between what they are moti­
vated to achieve, and what they believe they will be 
allowed to achieve. This gap results in a relatively low 
“ social”  motivation, as against high personal motiva­
tion. The evidence indicates that this social motivation 
will be raised only if expectations can be raised. One 
of the serious bars to lifting expectations is the cur­
rent understanding among the young people of the 
Negro community that no matter how well-educated 
they become, no matter how well-employed they be­
come, no matter how much they achieve, they will not 
be allowed to rent or purchase a home in a place com­
mensurate with their achievement. This feeling that 
they “ are on the outside looking in”  is destined to 
frustrate attempts economically to rehabilitate the 
bulk of the younger generation in the non-white com­
munity and to break the cycle of poverty which is 
burdening them and society in general.

The passage of Proposition 14 re-emphasizes and 
underscores these feelings. The existence of this 
amendment in the State Constitution indicates to this 
embattled population, and especially to the young 
people among them, that their disability has been in­
definitely enshrined not only as a matter of practice, 
but as a matter of fundamental State law. I f  it is 
valid law, it can only aggravate, to a very substantial 
degree, the major social problems referred to above.

xii



X l l l

Your affiant would testify to the foregoing facts if 
called as a witness at the trial of this lawsuit.

Earl David Raab
Subscribed and sworn to before me this 18th day of 

December, 1964.

V I I

Notary Public 
State of California



L . A . N os. 28360, 28422 and 28449  
S. F . N os. 22019, 22020 and 22017  
Sac. N o. 7657

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

AMICUS CURIAE BRIEF
OF THE NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.

B y:
R i c h a r d  A .  B a n c r o f t ,

683 McAllister Street,
San Francisco, California 94102,

JA C K  (xREENBERG,
New York, N. Y.,

Attorneys for Amicus Curiae.
Of Counsel:

R o b e r t  M . 0  ’N e i l ,
683 McAllister Street,
San Francisco, California 94102.

OF THE

S ta te  of California

L. A. No. 28360
LINCOLN W. MULKEY, et al., 

NEIL REITMAN, et al.,

Plaintiffs and Appellants, 

Defendants and Respondents.

(Continued on Inside Cover)



L. A. No. 28422
WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Gross-Defendants and Respondents, 

vs.
CLARENCE SNYDER, Cross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

L. A. No. 28449
THOMAS ROY PEYTON, M.D., Plaintiff and, Appellant,

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

Sae. No. 7657
CLIFTON HILL, Plaintiff and Appellant,

vs.
CRAWFORD MILLER, Defendant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Gallagher, Judge

S. F. No. 22019
DORIS R. THOMAS, Plaintiff and Appellant,

vs.
G. E. GOULIAS, et al., Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. P. No. 22020
JOYCE GROGAN, Plaintiff and Appellant,

vs.
ERICH MEYER, Defendant and Respondent.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. P. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
vs.

KARL BUCKMAN, Chairman of the Redevelopment Agency of the City of 
Fresno, Respondent.

Petition for Writ of Mandate



Subject Index

Page
Interest of amicus ...................................................................... .. 2

I. Article I, § 26 of the California Constitution violates 
the Supremacy Clause of the United States Constitu­
tion, because it obstructs vital federal programs for 
California, and because it closes the doors of California 
courts to the enforcement of various federal rights.. . .  3
A. Article I, § 26 cripples the federal program of

assisting .construction of nondiscriminatory housing 
and urban renewal projects in California communi­
t ie s ...................................................................................  3
1. The federal policy of nondiscrimination in housing 3
2. Implementation of the federal p o licy ...................  6
3. Conflict between state and federal law ...............  7

B. Article I, § 26 conflicts with other federal policies
and interests ........................... ....................................  13

C. Article I, § 26 closes the doors of the California
courts to causes of action based upon the U. S. Con­
stitution and acts of Congress .................................. 15



Table of Authorities Cited

Cases Pages
Berman v. Parker, 348 U.S. 26 (1954) .................................  4
Buchanan v. Warley, 245 U.S. 60 (1917) ............................... 4

Claflin v. Houseman, 93 U.S. 130 (1876) ............................  15

Farmer v. Philadelphia Elec. Co., 329 F.2d 3 (3d Cir.
1964) .......................................................................................  18

First Iowa Hydro-Electric Coop. v. FPC, 328 U.S. 152
(1946)  ........................................... ......................................  12

FPC v. Oregon, 349 U.S. 435 (1955) .....................................  12

Hurd v. Hodge, 334 U.S. 24 (1948) ...............................  4

In re Redevelopment Plan for Bunker Hill, 61 Cal. 2d 21
(1964) ...................................................................................... 17

Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 
(1958), on remand, 53 Cal. 2d 692 (1960).........................  10

Kleiber v. City and County of San Francisco, 18 Cal. 2d 
718 (1941) ..............................................................................  17

McCarroll v. Los Angeles County District Council of Car­
penters, 49 Cal. 2d 45 (1957) ............................................... 16

Miller v. Arkansas, 352 U.S. 187 (1956) ................................ 12
Ming v. Horgan, No. 97130, 3 Race Rel. L. Rep. 693 (Super.

Ct. June 23, 1958) .............................................................  5,17

Napier v. Church, 132 Tenn. I ll, 177 S.W. 56 (1915)........ 17
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 

(N.D. Ohio 1929) ..................................................................  18

Roosevelt Field v. Town of North Hempstead, 84 I1. Supp.
456 (E.D. N.Y. 1949) ..........................................................  18

Second Employers’ Liability Cases, 223 U.S. 1 (1911) . . . .  15
Smith v. Holiday Inns of America, Inc., 336 F.2d 630 (6th

Cir. 1964) ................................................................................ 6,17
Sperry v. Florida Bar, 373 U.S. 379 (1963) .......................  12

Testa v. Katt, 330 U.S. 386 (1947) ....................................... 16

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951). . . .  7
Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948).......... 14



Attorney General’s Opinions Pages
43 Ops. Oal. Atty. Gen 98A (1964) .......................................  7

Constitutions
California Constitution:

Article I, Section 3 ............................................................. 3
Article I, Section 2 6 ...................................................3, 8, 10, 17

United States Constitution:
Article VI ......................................................................  3

Statutes
Civil Rights Act of 1964:

Title IV ................................................................................ 14
Section 405(a) ................................................................  14
Section 605 ........................................................................  8

Title VI ...............................................................................8,9,10

23 U.S.C. § 120 (1958) ............................................................  12

42 U.S.C. § 1441 (1958) ............................................................  4

42 U.S.C. § 1982 (1958) ............................................................  4,17

Texts
“ Civil Rights Under Federal Programs,” Civil Rights Com­

mission, Jan. 1965, p. 13 ......................................................  9

Clancy & Nemerovski, Some Legal Aspects of Proposition 
Fourteen, 16 Hastings L. J. 3, 13 n. 47 (1964).................  18

Executive Order on Equal Opportunity in Housing, No.
11063, 27 Fed. Reg. 11527 (1962) ....................................... 6

60 Ilarv. L. Rev. 966, 969 (1947) .............    15

77 Harv. L. Rev. 285 (1963) ..................................................  18

Los Angeles Times, December 3, 1964, part II, p. 8 .......... 8

Sioane, One Year’s Experience: Current and Potential Im­
pact of the Housing Order, 32 Geo. Wash. L. Rev. 457,
474 (1964) .............................................................................  6

Taylor, Destruction of Federal Reclamation Policy? The 
Ivanhoe Case, 10 Stan. L. Rev. 76, 83-84, 111 (1957)........ 11

T able of A uthorities Cited iii



L. A. Nos. 28360, 28422 and 28449 
S. F. Nos. 22019, 22020 and 22017 
Sac. No. 7657

In the Supreme Court
OF THE

State of California

L. A. No. 28360
LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,

NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court of Orange County 
Honorable Raymond Thompson, Judge

L. A. No. 28422
WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, on 

behalf of themselves and all persons similarly situated,
Cross-Defendants and Respondents,

vs.
CLARENCE SNYDER, Cross-Complainant and Appellant.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

L. A. No. 28449
THOMAS ROY PEYTON, M.D., Plaintiff and Appellant,

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

Appeal from the Superior Court of Los Angeles County 
Honorable Martin Katz, Judge

Sac. No. 7657
Plaintiff and Appellant, 

vs.
Defetidant and Respondent.

Appeal from the Superior Court of Sacramento County 
Honorable William Gallagher, Judge

CLIFTON HILL 

CRAWFORD MILLER



2

S. F. No. 22019
DORIS R. THOMAS, Plaintiff and Appellant,

vs.
G. E. GOULIAS, et al., Defendants and Respondents.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22020
JOYCE GROGAN, Plaintiff and Appellant,

vs.
ERICH MEYER, Defendant and Respondent.

Appeal from the Municipal Court of the 
City and County of San Francisco

Honorable Robert J. Drewes, Judge; Honorable Leland J. 
Lazarus, Judge, and Honorable Lawrence S. Mana, Judge

S. F. No. 22017
REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public body, 

corporate and politic, Petitioner,
vs.

KARL BUCKMAN, Chairman of the Redevelopment Agency of the City of 
Fresno, Respondent.

Petition for Writ of Mandate

AMICUS CURIAE BRIEF
OF THE NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.

INTEREST OF AMICUS

The National Association for the Advancement of 
Colored People Legal Defense and Education Fund 
Inc., is an organization which is dedicated to the pro­
tection of the legal rights of Negroes. This brief is 
limited to the issue of the conflict between Proposition



3

14 and the Supremacy Clause of the United States 
Constitution and is being filed because this issue has 
not been fully developed in the briefs in this matter 
presently before this Court.

I. ARTICLE I, § 26 OF THE CALIFORNIA CONSTITUTION VIO­
LATES THE SUPREMACY CLAUSE OF THE UNITED STATES 
CONSTITUTION, BECAUSE IT OBSTRUCTS VITAL FEDERAL 
PROGRAMS FOR CALIFORNIA, AND BECAUSE IT CLOSES 
THE DOORS OF CALIFORNIA COURTS TO THE ENFORCE­
MENT OF VARIOUS FEDERAL RIGHTS.

The cornerstone of the Federal system is the su­
premacy of federal law decreed by Article V I of the 
Constitution of the United States. The California 
Constitution, Art. I, § 3, recognizes the reciprocal ob­
ligation which this clause imposes upon the States. 
Article I, § 26 would challenge the supremacy of fed­
eral law in three important respects: (1) by prevent­
ing the implementation of comprehensive federal pro­
grams in the areas of housing and urban renewal; 
(2) by disabling the State and all state and local offi­
cials from cooperating with the Federal Government 
in other important areas; and (3) by closing the doors 
of the state courts to lawsuits based upon the Federal 
Constitution and acts of Congress.

A. Article I, § 26 Cripples the Federal Program of Assisting 
Construction of Nondiscriminatory Housing and Urban Re- 
newal Projects in California Communities.

1. The Federal Policy of Nondiscrimination in Housing.

Congress has twice declared a strong federal policy 
of nondiscrimination in the sale or rental of housing.



4

Shortly after the Civil War Congress enacted as part 
of the original civil rights legislation this provision: 
“ 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.”  42 
U.S.C. § 1982 (1958). This provision has been seldom 
before the courts. But in one of the restrictive cove­
nant cases, the U.S. Supreme Court found in this brief 
statute a federal policy against any direct or indirect 
governmental support of racial discrimination in pri­
vate housing. Hurd v. Hodge, 334 U.S. 24, 34 (1948); 
see also Buchanan v. Warley, 245 U.S. 60, 79 (1917).

The second and more recent source of nondiscrimi­
nation is the extensive federal legislation designed to 
assist the construction of housing. The present federal 
housing aid program, of which urban renewal is a 
central part, derives from the Housing Act of 1949. 
In that statute Congress declared it to be the national 
purpose to realize as soon as possible the goal of “ a 
decent home and a suitable living environment for every 
American family . . .” 42 U.S.C. § 1441 (1958). This 
purpose, and the programs designed to implement it, 
are in the judgment of Congress required by “ the 
general welfare and security of the Nation and the 
health and living standards of its people.” The United 
States Supreme Court recognized over a decade ago 
the critical importance of comprehensive slum clear­
ance and urban renewal to the national health and 
well-being. Berman v. Parker, 348 U.S. 26 (1954). 
And since the adoption of the National Housing Act



5

great strides have been made toward the national goal 
of decent housing for all Americans. California has 
enjoyed at least a fair share of that progress; by No­
vember, 1964 the Federal Government had supplied 
about $250 million for urban renewal in California 
communities.

Clearly these federal funds may not be used to fi­
nance, directly or indirectly, racial discrimination on 
the part of private beneficiaries. While there is no 
express prohibition of discrimination in the terms of 
the Housing Act such a prohibition is necessarily im­
plied—else there would be serious doubt about the 
constitutionality of the statute. Recognition of this 
principle was the basis of the landmark decision of the 
Superior Court of Sacramento County in Ming v. 
Horgan, No. 97130, 3 Race Rel. L. Rep. 693, 698-99 
(Super. Ct. June 23, 1958). Judge Oakley concluded 
that “ Congress must have intended the supplying of 
housing for all citizens, not just Caucasians—and on an 
equal, not a segregated basis.”  Otherwise, the court 
continued, ‘ ‘ the constitutional guaranties of equal pro­
tection and non-discrimination would be accorded only 
secondary importance and they would have to recede 
from a good deal that has been laid down in recent 
years as fundamental doctrine.”  On this basis the 
court held that a federally assisted subdeveloper 
might not constitutionally practice racial discrimina­
tion in the sale of private housing. This same prin­
ciple has recently been recognized and applied by a 
federal court of appeals, in holding that a private 
motel built as part of a federally financed urban re-



6

newa] project could not discriminate against a Negro 
who sought lodging there. Smith v. Holiday Inns of 
America, Inc., 336 F'.2d 630 (6th Cir. 1964) (the same 
result would clearly be required today by the Civil 
Rights Act of 1964, but the case arose before passage 
of that Act).

2. Implementation of the Federal Policy.

It remained for the late President Kennedy to make 
explicit what had always been implicit in the Housing 
Act. The Executive Order on Equal Opportunity in 
Housing, No. 11063, 27 Eed. Reg. 11527 (1962), sought 
to guarantee that federal funds may not be used to 
foster, directly or indirectly, racial discrimination in 
the sale or rental of housing. The Order applied to all 
funds to be appropriated for projects approved after 
its effective date. Thus every participating local 
agency was required to sign an agreement to provide 
for nondiscrimination in its contracts with rede­
velopers. See Sloane, One Year’s Experience: Cur­
rent and Potential Impact of the Housing Order, 32 
Geo. Wash. L. Rev. 457, 474 (1964). As for projects 
approved before the Order was issued, the Order called 
upon federal agencies and officials “ to use their good 
offices and to take other appropriate action permitted 
by law . . .  to promote the abandonment of discrimi­
natory practices with respect to residential property 
and related facilities heretofore provided with federal 
financial assistance. . . .”  (§ 102)



3. Conflict Between State and Federal Law,

In order to appreciate tlie severity of the conflict 
between the new California Constitutional amendment 
and the federal law, it is necessary to consider three 
types of renewal projects. With respect to projects 
contracted for prior to issuance of the Executive Order, 
California officials now seem powerless to cooperate 
or assist with the “ good offices” and “ appropriate 
action”  of federal officials designed to end whatever 
racial or other discrimination there may be in fed­
erally assisted projects. Thus state law effectively pre­
cludes the performance of a duty required by federal 
law and based upon the United States Constitution.

With respect to contracts entered between the effec­
tive date of the Executive Order and November 3, 
1964, the nondiscrimination pledge has been incorpo­
rated into many agreements, apparently without diffi­
culty. See letter from Robert C. Weaver, Administra­
tor of the Housing and Home Finance Agency, to 
Rep. Augustus F. Hawkins, March 1964, in 43 Ops. 
Cal. Atty. Gen. 98A (1964) (reprinted in advance 
sheet only). Funds appropriated for such projects will 
continue to be spent until the projects are completed. 
Yet state officials will apparently be powerless to en­
force the nondiscrimination pledge that federal law 
compelled them to sign—for example, by obtaining the 
requisite nondiseriminatory guarantee from the rede­
veloper. This is clearly contrary to the principle that 
a state may not back out of an agreement with the 
Federal Government or with another State because of 
a supervening change in its public policy. See West 
Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951).



8

The third set of projects are those now on the 
drawing board but not yet contracted for. It is here 
that the conflict between state and federal law is the 
sharpest. Since November 1964 all federal funds for 
future projects have been cancelled because Article I, 
§ 26 appears to make state and local officials unable 
to sign the nondiscrimination pledge that federal law 
requires. See Los Angeles Times, December 3, 1964, 
part II, p. 8. This means, at the very least, a tragic 
loss for the people of California—some $250 million 
further funds had been planned for renewal projects 
in the State over the next four years. Even more criti­
cal is the constitutional issue raised by the square 
conflict between two bodies of law: The recent amend­
ment of the California Constitution interposes state 
law between the Federal law and the achievement of 
a vital federal objective of urban renewal and decent 
housing for slum dwellers. It would be harder to 
imagine a clearer violation of the Supremacy Clause.

The strong federal requirement of nondiscrimina­
tion in urban renewal has been reinforced by the 
passage of the Civil Bights Act of 1964. Title V I of 
the act partially supersedes the Executive Order— 
although the Act makes clear that the Order remains 
in full force and effect for those areas of federally 
assisted housing not covered by the new law. (For 
example, § 605 of the Civil Rights Act excludes from 
the nondiscriminatory obligations of Title V I “ a con­
tract of insurance or guaranty.” This language thus 
excludes such activities as the FHA home mortgage 
insurance program. The Executive Order continues



9

to require nondiscrimination, however, in all future 
FHA-assisted single and multi-family developments. 
See “ Civil Rights Under Federal Programs,”  Civil 
Rights Commission, Jan. 1965, p. 13). Thus, while 
there is some question precisely where and to what 
extent the Civil Rights Act does supersede the Execu­
tive Order, there is no question that all programs 
which were covered prior to passage of the new law 
continue to be covered.

In several respects, in fact, the Civil Rights Act 
goes beyond the nondiscrimination requirement of the 
Executive Order. Under recent Housing and Home 
Finance Agency Regulations implementing Title VI, 
all urban renewal projects that had not yet reached 
the land disposition stage by January 4, 1965, are sub­
ject to the nondiscrimination requirements of the new 
law, regardless of the date on which the loan and 
grant contract was executed. Thus Title V I has the 
effect of subjecting the great bulk of federally as­
sisted urban renewal activity to the requirement of 
nondiscrimination, because of the typically long time 
lag between execution of the loan and grant contract 
and final disposition of the land.

The Civil Rights Act goes further than the Execu­
tive Order in at least one other area: in public hous­
ing, all low-rent projects still receiving annual con­
tributions from the Public Housing Administration 
on January 4, 1965 are subject to the requirements of 
Title VI, regardless of the date on which the annual 
contributions contract was signed. This means that 
virtually every public housing project authorized since



1U

1937, when the program was initiated, is now subject 
to the nondiscrimination requirement.

In these several areas where Title V I has extended 
or expanded the effect of the Executive Order, non- 
discriminatory undertakings previously required of 
local urban renewal authorities by the Order would 
now appear to be required by Act of Congress. I f  
there was ever any question whether California law 
could abridge the force of a presidential decree, there 
can be no question that any inconsistent state law 
must yield to federal legislation. Thus to the extent 
that Article I, § 26 purports to disable state and local 
officials from signing or enforcing a nondiseriminatory 
undertaking as a condition of participation in federal 
housing programs or federal urban renewal projects, 
it is clearly invalid by reason of conflict with the Su­
premacy Clause.

Several lines of U.S. Supreme Court decisions rein­
force these conclusions. Closely in point are the San 
Joaquin Valley Reclamation eases, culminating in 
Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 
(1958), on remand, 53 Cal. 2d 692 (1960). There the 
Court held, inter alia, that when Congress has enacted 
a comprehensive scheme to govern federally assisted 
reclamation projects necessary for the national wel­
fare, inconsistent provisions of state law must yield. 
Thus state law was struck down to the extent it pur­
ported to invalidate the “  excess lands” provisions in 
contracts between the United States and state and 
local agencies involved in the reclamation project. 
There was, the Court affirmed, no doubt about the



1L

power of the Federal Government “ to impose reason­
able conditions on the use of federal funds, federal 
property, and federal privileges.”  Consequently, the 
Court continued, “ a State cannot compel use of fed­
eral property on terms other than those prescribed or 
authorized by Congress.”  When conflict between state 
and federal law threatened to obstruct the federal pur­
pose, “ Article V I of the Constitution, of course, for­
bids state encroachment on the supremacy of federal 
legislative action.”  357 U.S. at 295. A  contrary hold­
ing might well have frustrated or crippled the carry­
ing out of a program which—like urban renewal—was 
in the judgment of the Congress vital to the national 
interest. See Taylor, Destruction of Federal Reclama­
tion Policy ? The Ivanhoe Case, 10 Stan L. Rev. 76, 
83-84, 111 (1957). The present case should be a fortiori 
from Ivanhoe—since the requirement of nondiscrimi­
nation in the urban renewal contracts is more clearly 
compelled by the Federal Constitution than the excess 
lands provisions of the reclamation contracts.

The relevance of the Ivanhoe doctrine for the pres­
ent case may be underscored by a hypothetical ex­
ample. Suppose the State of Nevada decided that it 
wanted no limited-access Interstate Highways built 
within its borders. Suppose further, to implement that 
decision, a provision were added to the State Consti­
tution forbidding state officials from aiding the con­
struction of the highways in any respect—even by 
preventing obstruction or interference by private 
citizens. Such a provision would mean, at the very 
least, that the State could make no contribution to the



12

construction of the highway, which would very likely 
cancel the project under present statutes. (See 23 
U.S.C. §120' (1958).) It would also completely close 
the doors of the state courts to any condemnation or 
other proceedings in connection with the highway. 
Even more serious, state police would be barred by the 
state constitution from moving squatters or legally 
dispossessed owners off lands condemned for the right 
of way. Nor could they protect the equipment of fed­
eral contractors from looting by local hoodlums. Thus 
it would be very doubtful whether any Interstate high­
way could be built in Nevada if the State withdrew its 
cooperation in this way.

Undoubtedly the United States Supreme Court 
would strike down any such outlandish state inter­
position as this. Such state action would presumably 
fare no better under the Supremacy Clause than state 
attempts, for example, to thwart the construction of 
federally licensed dams, First Iowa Hydro-Electric 
Coop. v. FPC, 328 U.S. 152 (1946) ; FPG v. Oregon, 
349 U.S. 435 (1955) ; state attempts to bar federally 
licensed patent attorneys from carrying on their prac­
tice in the state without joining the state bar, Sperry 
v. Florida Bar, 373 U.S. 379 (1963) ; or state regula­
tion of federal contractors in ways that interfere with 
the implementation of federal policies in the State, 
Miller v. Arkansas, 352 U.S. 187 (1956). Nor should 
the recent amendment to the California Constitution 
fare better than state interpositions of this sort have 
fared—for the direct conflict between federal and state 
law seems logically indistinguishable from the Nevada



highway case. The frustration of a vital federal ob­
jective is equally apparent and just as serious.

B. Article I, §2 6  Conflicts With Other Federal Policies and 
Interests.

There are other and subtler forms of conflict that 
are bound to result as the full impact of the consti­
tutional amendment is felt in California. It may no 
longer be possible, for example, for state officials to 
cooperate with the U.S. State Department in guaran­
teeing or offering nondiscriminatory housing for con­
suls, diplomats or prominent visitors from Asian and 
African nations. Nor will officials of the University 
of California or the State Colleges be able to offer 
any guarantee to exchange students from these coun­
tries that they will find suitable off-campus housing 
when they come to California—since these institutions 
are presumably no longer able to exact the nondis­
crimination pledge heretofore required of private land­
lords listing accommodations with the campus housing 
offices. For a state which boasts a campus with more 
foreign students than any other institution in the 
country, this is a deplorable situation—and one which 
may seriously interfere with a strong federal interest 
in promoting the exchange of scholars with other 
nations.

For similar reasons California officials will presum­
ably be unable to join officials of several other states 
who have cooperated with federal military officials in 
providing access to nondiscriminatory off-base housing 
for Negro service personnel and their families. There



14

can be no doubt that the Federal military power in­
cludes the incidental power to provide for housing of 
all persons involved in the military effort, in peace 
time as well as in war, Woods v. Cloyd W. Miller Go., 
333 U.S. 138 (1948). And the unavailability of noil- 
discriminatory oil-base housing could cripple military 
operations in California.

There may also be a serious question whether Cali­
fornia education officials will be able to accept federal 
funds made available under Title 1Y of the Civil 
Rights Act of 1964 to help local school authorities “ in 
dealing -with problems incident to desegregation . . .” 
(§ 405(a)) This is not because the California consti­
tutional amendment affects school desegregation as 
such. The problem stems from the view of the State 
Board of Education that de facto racial segregation, 
where it exists in California, is very largely the prod­
uct of “ patterns of residential segregation . . . ”  The 
State Board has recently argued that “ discrimination 
in housing is at the root of racial imbalance in 
schools,”  and that “ a constitutionally inviolate right 
to discriminate in the sale of real estate would render 
inadequate the means available to the Board to alle­
viate de facto segregation in the schools.”  (Brief for 
the Attorney General and the California State Board 
of Education as Amici Curiae, Lewis v. Jordan, Sac. 
7549, p. 5.) Thus the constitutional amendment ap­
pears to deprive school officials of the very means of 
combatting de facto segregation which would make 
them best able to use the federal funds offered under 
Title IV.



15

C. Article I ,  §2 6  Closes the Doors of the California Courts to 
Causes of Action Based Upon the U,S. Constitution and Acts 
of Congress.

It is basic constitutional law that a State may not 
arbitrarily close its courts to actions based upon fed­
eral law, Claflin v. Houseman, 93 U.S. 130 (1876). 
The United States Supreme Court has repeatedly 
denied that any supposed conflict between state policy 
and the federal law on which a suit is based would 
warrant the dismissal of the suit. Second Employers’ 
Liability Gases, 223 U.S. 1, 57 (1911) ; see Note, 60 
Harv. L. Rev. 966, 969 (1947). The Claflin case sup­
plied the rationale for this doctrine:

I f  an Act of Congress gives a penalty to a party 
aggrieved, without specifying a remedy for its 
enforcement, there is no reason why it should not 
be enforced, if not provided otherwise by some act 
of Congress, by a proper action in a state court. 
The fact that a state court derives its existence 
and functions from the state laws is no reason 
why it should not afford relief; because it is 
subject also to the laws of the United States, and 
it is just as much bound to recognize these as 
operative within the State as it is to recognize the 
state laws. The two together form one system of 
jurisprudence, which constitutes the law of the 
land for the State; and the courts of the two 
jurisdictions are not foreign, to each other, nor 
to be treated by each other as such, but as courts 
of the same country, having jurisdiction partly 
different and partly concurrent. Claflin v. Honse- 
mam,, 93 U.S. 130, 137 (1876).

Recently the obligation of the state courts to entertain 
federal causes of action has been extended to penal as



16

well as remedial statutes, at least where a similar 
remedy is available under state law, Testa v. Katt, 330 
U.S. 386 (1947). This is so despite state courts’ strong 
insistence that the entertainment of such suits is con­
trary to state public policy. The strength of this prin­
ciple has been recognized at least once by the Cali­
fornia Supreme Court, McCarroll v. Los Angeles 
County District Council of Carpenters, 49 Cal. 2d 45, 
61 (1957).

There are several specific sources of federal claims 
to which the California constitutional amendment 
would appear to close the doors of the state courts. 
The most obvious is the kind of suit recognized in 
Ming v. Horgan, supra, in which the right of a Negro 
not to be discriminated against in the purchase of 
housing financed in part with state and federal funds 
was grounded squarely on the federal statutes and the 
Fourteenth Amendment. Assuming that the word 
“ subdivision” in the constitutional amendment in­
cludes state courts, there seems little doubt that a suit 
identical to Ming v. Horgan would now have to be 
dismissed. The sole reason for dismissal would be a 
state policy, reflected in the constitutional amendment, 
purportedly in conflict with federal law and policy. 
That is a result which seems hardly compatible with 
the Supremacy Clause as the United States Supreme 
Court has applied it to the state courts.

There are at least three other sources in the federal 
law from which a cause of action might be implied in 
favor of a minoi’ity group member discriminated 
against in the sale or rental of housing. First, there



17

is the old statute to which reference has already been 
made—42 U.S.C. § 1982 which provides: “ All citizens 
of the United States shall have the same right, in 
every State and Territory, as is enjoyed by white citi­
zens thereof to inherit, purchase, lease, sell, hold and 
convey real and personal property.”  Although these 
original civil rights statutes are designed chiefly for 
federal court enforcement, nothing in the federal law 
precludes recognition of such rights in the state courts. 
Cf. Napier v. Church, 132 Tenn. I l l ,  177 S.W. 56 
(1915).

A suit might also be based directly upon the Hous­
ing A ct’s implied guarantee of equal treatment in 
federally assisted housing. Although persons affected 
by a renewal project have no standing to challenge 
the proposed expenditure of federal funds by the re­
development agency, In re Redevelopment Plan for 
Bunker Hill, 61 Cal. 2d 21 (1964), that decision in no 
way forecloses the possibility of suit in the state 
courts for injury resulting from misuse of federal 
funds. Cf. Smith v. Holiday Inns of America, Inc., 
336 P.2d 630 (6th Cir. 1964). Yet the adoption of 
Article I, § 26, would appear to bar any such suits 
based upon alleged violations of federal law—even 
though the state courts would remain open to suits 
challenging the use of funds under state laws, such as 
the California Housing Authorities Law. Cf. Kleiber 
v. City and County of San Francisco, 18 Cal. 2d 718 
(1941). This is precisely the sort of discrimination 
against federal rights that Claflin v. Houseman, supra, 
and the later U.S. Supreme Court cases, do not per­



18

mit. See Clancy & Nemerovski, Some Legal Aspects of 
Proposition Fourteen, 16 Hastings L.J. 3, 13 n.47 
(1964).

Finally a private action might be based upon the 
.November 1962 Executive Order on Equal Opportun­
ity in Housing. While there have apparently been no 
suits yet based upon the Order, private actions based 
upon alleged violations of federal administrative regu­
lations that create no express private remedies are by 
no means novel. See, e.g., Neiswonger v. Goodyear Tire 
& Rubber Go., 35 F.2d 761 (N.D. Ohio 1929); Roose­
velt Field v. Town of North Hempstead, 84 F. Supp. 
456 (E.D. N.Y. 1949) ; Note, 77 Harv. L. Rev. 285 
(1963). Indeed, one federal court of appeals recently 
declined to allow a private claim based upon the Execu­
tive Orders concerning Equal Employment Opportun­
ity—but only because such actions would not be com­
patible with the particular purposes of the orders in 
question. Farmer v. Philadelphia Elec. Go., 329 F.2d 
3 (3d Cir. 1964). Nothing in that decision forecloses 
the implication of private remedies for the violation 
of other Executive Orders.

Thus there are at least four distinct sources from 
which a private cause of action under federal law 
might be derived—the Fourteenth Amendment, the 
civil rights statute that deals with housing, the Na­
tional Housing Act, and President Kennedy’s Execu­
tive Order. Yet the enactment of the California con­
stitutional amendment appears to close the doors of 
the California courts to all such suits. That foreclo­
sure seems in square conflict with a long line of IT.S.



19

Supreme Court decisions which have put beyond 
doubt the principle that state courts may not, con­
sistent with the Supremacy Clause, refuse to entertain 
causes of action grounded on federal law while keep­
ing their doors open to suitors pressing similar state- 
law claims.

Dated, San Francisco, California,
June 11, 1965.

R ichard A. B ancroft,
J ack Greenberg,

Attorneys for Amicus Curiae.
Of Counsel:

R obert M. O’Neil.



P E R N A U - W A L S H  P R I N T I N G  C O . ,  S A N  F R A N C I S C O ,  C A L I F O R N I A