Mulkey v. Reitman Amicus Curiae Brief

    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 B.EITMAN, et al., Defendants and Respondents.

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

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

Of Counsel:

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

683 McAllister Street,
San Francisco, California 94102,

J a c k  Gr e e n b e r g ,
New York, N. Y.,

Attorneys for Amicus Curiae.

R o bert  M. O ’N e i l ,
683 McAllister Street,
San Francisco, California 94102.

(Continued on Inside Cover)

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



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-ComplaAmmt 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
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 ad., 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

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
ties ....................................................................................  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 la w ................ 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

Oases 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

Parmer 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 l l ,  177 S.W. 56 (1915)........  17
Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 

(N.D. Ohio 1929) ................................................................... IS

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

Second Employers’ Liability Cases, 223 U.S. 1 (1 9 1 1 ).... 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 (1 9 5 1 ).... 7
Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948).......... 14



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

Constitutions
California Constitution:

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

United States Constittuion:
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

Sloane, 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

Table 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,

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

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

vs.
CRAWFORD MILLER, Defendant and Respondent.

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



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 Sail Francisco

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

JOYCE GROGAN, 

ERICH MEYER,

S. F. No. 22020
vs.

Plaintiff and Appellant, 

Defendant wnd 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 Eund 
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 Grovernment 
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, o f 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 shim  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 o f this 
principle was the basis of the landmark decision of the 
Superior Court of Sacramento County in Ming v. 
Morgan, 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

newal 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 Fed. 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 
Oeo. 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)



7

3, Conflict Between State and Federal Law.

In order to appreciate the 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 nondiscriminatory 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 Rights 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 o f 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 o f 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 V I, regardless of the date on which the annual 
contributions contract was signed. This means that 
virtually every public housing project authorized since



10

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 cases, 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



11

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 VI 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. EEC, 328 U.S. 152 (1916) ; FPC v. Oregon, 
319 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



13

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

B. Article I, § 26 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. ISTor 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. Gloyd W. Miller Go., 
333 U.S. 138 (1948). And the unavailability of non- 
discriminatory off-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 IY  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, § 26 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 Cases, 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. House­
man, 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, McCarroTl 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 minority group member discriminated 
against in the sale or rental of housing. First, there



17

is the old statute to which reference has already been 
ma(ie—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 F.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



IS

mit. See Clancy & Neinerovsld, 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 Co., 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. Co., 329 F.2d 
3 (3d Oir. 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 II. 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 ic h a r d  A. B a n c r o f t ,

J a c k  G r e e n b e r g ,
A ttorneys for Amicus Curiae.

Of Counsel:
R o bert  M . O ’N e il .