League of United Latin American Citizens (LULAC) v. Mattox Brief of Plaintiffs-Appellees
Public Court Documents
October 3, 1991
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Brief Collection, LDF Court Filings. League of United Latin American Citizens (LULAC) v. Mattox Brief of Plaintiffs-Appellees, 1991. 919a6736-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ca097a8d-0729-41d2-b891-3c25832f95cb/league-of-united-latin-american-citizens-lulac-v-mattox-brief-of-plaintiffs-appellees. Accessed April 28, 2025.
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IN THE UNITED STATES COURT OF APPEALS
NO. 90-8014
LEAGUE OF UNITED LATIN
JIM MATTOX
ON REMAND FROM T H E . v. .
UNITED STATES SUPREME COURT
ROLANDO L. RIOS
ATTORNEY AT LAW
201 N. St. Mary
Suite 521
San Antonio, TX
78205
512/ 222-2102
WILLIAM L. GARRETT
ATTORNEY AT LAW
8300 Douglas Ave.
Suite 800
Dallas, TX
75225
214/ 359-1952
ATTORNEY AT LAW
405 N. St. Mary's
Suite 910
San Antonio, TX
78205
512/ 271-3807'
~viiiiilliiwta(<iii’ iriiwh
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL.
Plaintiffs-Appellees
VS.
JIM MATTOX, ET AL.
Defendants-Appellants
ON REMAND FROM THE
UNITED STATES SUPREME COURT
BRIEF OF
PLAINTIFFS-APPELLEES
ROLANDO L. RIOS
ATTORNEY AT LAW
201 N. St. Mary's
Suite 521
San Antonio, TX
78205
512/ 222-2102
WILLIAM L. GARRETT
ATTORNEY AT LAW
8300 Douglas Ave.
Suite 800
Dallas, TX
75225
214/ 369-1952
SUSAN FINKELSTEIN
ATTORNEY AT LAW
405 N. St. Mary's
Suite 910
San Antonio, TX
78205
512/ 271-3807
ATTORNEYS FOR PLAINTIFFS-APPELLEES
CERTIFICATE OF INTERESTED PARTIES
NO. 90-8014
LULAC, et al. vs. JIM MATTOX, et al.
LOCAL RULE 28.2.1 CERTIFICATE
The undersigned, counsel of record for LULAC, et al.,
certifies that the following listed parties have an interest in the
outcome of this case. These representations are made to enable
Judges of the court to evaluate possible disqualification or
recusal.
Plaintiffs:
LULAC Local Council 4434
LULAC Local Council 4451
LULAC (Statewide)
Christina Moreno
Aquilla Watson
Joan Ervin
Matthew W. Plummer, Sr.
Jim Conley
Volma Overton
Willard Pen Conat
Gene Collins
Al Price
Theodore M. Hogrobrooks
-.Ernest M. Deckard
Judge Mary Ellen Hicks
Rev. James Thomas
Plaintiff-Intervenors:
Houston Lawyers' Association
Alice Bonner
Weldon Berry
Francis Williams
Rev. William Lawson
DeLoyd T. Parker
Bennie McGinty
Jesse Oliver
Fred Tinsley
Joan Winn White
i
Defendants:
Dan Morales, Attorney General of Texas
John Hannah, Secretary of State
Texas Judicial Districts Board
Thomas R. Phillips, Chief Justice, Texas Supreme Court
Michael J. McCormick, Presiding Judge, Court of Criminal
Appeals
Pat McDowell, Presiding Judge, 1st Admin. Judicial Region
Thomas J. Stovall, Jr., Presiding Judge, 2nd Admin.
Judicial Region
B. B. Schraub, Presiding Judge, 3rd Admin. Judicial
Region
John Cornyn, Presiding Judge, 4th Admin. Judicial Region
Darrell Hester, Presiding Judge, 5th Admin. Judicial
Region
William E. Moody, Presiding Judge, 6th Admin. Judicial
Region
Weldon Kirk, Presiding Judge, 7th Admin. Judicial Region
Jeff Walker, Presiding Judge, 8th Admin. Judicial Region
Ray D. Anderson, Presiding Judge, 9th Admin. Judicial
Region
Joe Spurlock II, President, Texas Judicial Council,
Leonard E. Davis
Defendant-Intervenors:
Judge Sharolyn Wood
Judge Harold Entz
Judge Tom Rickoff
Judge Susan D. Reed
Judge John J. Specia, Jr.
Judge Sid L. Harle
Judge Sharon MacRae
Judge Michael D. Pedan
Amicus:
Judge Larry Gist
Judge Leonard P. Giblin, Jr.
Judge Robert P. Walker
Judge Jack R. King
Judge James M. Farris
Judge Gary Sanderson
Judge Mike Bradford
Judge Patricia R. Lykos
Judge Donald K. Shipley
Judge Jay W. Burnett
Judge Bob Burdette
Judge Richard W. Millard
ii
Judge Wyatt W. Heard
Judge Michael T. McSpadden
Judge Ted Poe
Judge Joe Kegans
Judge Scott Brister
Judge Henry G. Schuble III
Judge Charles Dean Huckabee
Judge Woody R. Denson
Judge Norman R. Lee
Judge Doug Shaver
Judge Charles J. Hearn
Judge David West
Judge Tony Lindsay
Judge Louis M. Moore
Judge Dan Downey
Judge Bob Robertson
Judge John D. Montgomery
Judge Allen J. Daggett
Judge Robert S. Webb III
Judge Robert L. Lowry
Judge Robert B. Baum
Judge Eric D. Andell
Plaintiffs' Attorneys:
GARRETT & THOMPSON
William L. Garrett
Brenda Hull Thompson
Rolando L. Rios
TEXAS RURAL LEGAL AID, INC.
Susan Finkelstein
Plaintiff-Intervenors' Attorneys:
MULLENAX, WELLS, BAAB & CLOUTMAN
Edward B. Cloutman III
E. Brice Cunningham
NAACP LEGAL DEFENSE & EDUCATION FUND,
Julius L. Chambers
Sherrilyn A. Ifill
MATTHEWS & BRANSCOMB
Gabrielle K. McDonald
INC.
iii
ATTORNEY GENERAL OF TEXAS
Dan Morales
Will Pryor
Mary F. Keller
Renea Hicks
Javier P. Guajardo
Defendants' Attorneys:
Defendant-Intervenors' Attorneys:
HUGHES & LUCE
Robert H. Mow, Jr.
David C. Godbey
Bobby M. Rubarts
Esther R. Rosenbaum
PORTER & CLEMENTS
J. Eugene Clements
Evelyn V. Keyes
Darrell Smith
Michael J. Wood
Independent Counsel for George Bayoud, Secretary of State
LIDELL, SAPP. ZIVLEY, HILL & LaBOON
John L. Hill, Jr.
Andy Taylor
Independent Counsel for Ron Chapman, Thomas J. Stovall, Jr.,
B. B. Schraub, John Cornyn III, Darrell Hester, Sam M. Paxson,
Weldon Kirk, Jeff Walker:
GRAVES, DOUGHERTY, HEARON & MOODY
R. James George, Jr.
John M. Harmon
Margaret H. Taylor
Amici' Attorneys:
OPPENHEIMER, ROSENBERG, KELLEHER & WHEATLEY, INC.
Seagal V. Wheatley
Donald R. Philbin, Jr.
Michael E. Tigar
iv
Gerald H. Goldstein
Joel H. Pullen
Tom Maness
Royal B. Lea
RAMSEY & TYSON
Michael Ramsey
Daniel J. Popeo
Paul D. Kamenar
Alan B. Slobodin
Paul Strohl
Daniel M. Ogden
Walter L. Irvin
Orlando Garcia
Berta Alicia Mejia
Larry Evans
MEXICAN AMERICAN LEGAL DEFENSE EDUCATIONAL FUND
Jose Garza
Judith Sanders Castro
United States' Attorney:
ATTORNEY GENERAL OF THE UNITED STATES
John R. Dunne
Jessica Dunsay Silver
Mark Gross
Susan D. Carle
Attorney of Record for
LULAC, et al.
Plaintiffs-Appellees
v
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Plaintiffs-Appellees represents that oral
argument in the above case would be helpful to the Court because
of the factual and legal questions involved. Counsel believes that
the Court may have many questions regarding the case that can only
be answered in oral argument.
Oral argument has been set for Monday, November 4, 1991.
vi
TABLE OF CONTENTS
ITEM PAGE
Certificate of Interested Parties........................ i
Statement Regarding Oral Argument........................... vi
Table of Contents.......................................... vii
List of Authorities...........................................ix
Standards of Review and Notes on Organization of Brief . xii
Statement of Jurisdiction.................................... 1
Statement of the Issues...................................... 2
Statement of the Case........................................ 4
Course of Proceedings and Disposition
in the Trial Court ............. 4
Statement of the F a c t s .............................4
Summary of the Argument................................... 6
Argument ................................................... 9
I. Deference to District Court Findings ........... 9
II. State's Interest in At-Large Elections . . . . 11
Jurisdiction and Electoral B a s e ................ 13
Remedial Considerations ..................... 17
III. Linkage of Jurisdiction and Electoral Base . . 18
State Interest and D i l u t i o n ................... 18
Burden of P r o o f ............................... 2 0
Question of Fact or L a w ........................23
IV. Consideration of State's Interest ............. 24
State's Interests ............................. 24
C a u s a t i o n ....................................... 25
vii
V. Totality of the Circumstances..................26
VI. Contributions to Finding of Dilution ......... 29
Conclusion and Certificate of Service .................. 32
viii
Cases Pages
Batson v. Kentucky, 476 U. S. 79 (1986)...................... 11
Bolden v. City of Mobile, 423 F. Supp. 384
(S. D. Ala. 1976), affirmed 571 F. 2d 238
(5th Cir. 1978), reversed on other grounds,
446 U. S. 55 (1980)............................................ 22
Bradley v. Swearingen, 525 S. W. 2d 280
(Tex. Civ. App. 1 9 7 5 ) .......................................... 16
Chisom v. Roemer, 111 S. Ct. 2354 (1991) .................... 21
Cross v. Baxter, 604 F. 2d 875 (5th Cir. 1979) ............. 23
Eu v. San Francisco Cty. Democratic Cent. Com.,
109 S. Ct. 1013 (1989) ........................................ 17
Garcia v. Dial, 596 S. W. 2d 524 (Cr. App. 1980) ........... 15
Garza v. County of Los Angeles,
918 F. 2d 763 (9th Cir. 1 9 9 0 ) ................................. 31
Gregory v. Ashcroft, 111 S. Ct. 2395 (1991).................. 20
Hendrix v. Joseph, 559 F. 2d 1265 (5th Cir. 1977) . . . . 22, 23
Houston Lawyers' Assn. v. Attorney General of Texas,
111 S. Ct. 2376 (1991) ............................. 10, 18-20, 24
Jones v. City of Lubbock, 727 F. 2d 364 (1984) . . . 28, 30, 31
Kirksey v. Board of Supervisors, 554 F. 2d 139
(5th Cir. 1977) en banc, cert, denied,
434 U. S. 968 (1977) .......................................... 30
Latin American Citizens Council #4434 v. Clements,
914 F. 2d 620 (5th Cir. 1990) en b a n c .................... 17, 27
League of United Latin Am. Citizens v. Clements,
902 F. 2d 293 (5th Cir. 1 9 9 0 ) ................................. 17
Major v. Treen, 574 F. Supp. 325
(E. D. La. 1983) ............................................... 22
Monroe v. City of Woodville,
819 F. 2d 507 (5th Cir. 1 9 8 7 ) ................................. 31
Nevett v. Sides, 571 F. 2d 209 (5th Cir. 1978) ............. 23
TABLE OF AUTHORITIES
IX
Nipper v. U-Haul Co., 516 S.W.2d 467
(Tex. Civ. App. 1 9 7 4 ) .......................................... 13
Reed v. State, 500 S. W. 2d 137
(Tex. Crim. App. 1973) ........................................ 16
Rogers v. Lodge, 458 U. S. 613 (1982) ...................... 28
Tashjian v. Republican Party of Connecticut,
107 S. Ct. 544 (1986).......................................... 17
Thornburg v. Gingles,
106 S. Ct. 2752 (1986) .................... 10, 17, 20, 23-28, 30
U. S. v. Marengo Co. Com'n.,
731 F. 2d 1546 (11th Cir. 1 9 8 4 ) ............................... 22
Whitcomb v. Chavis, 403 U. S. 124 (1971) .................... 21
White v. Regester, 412 U. S. 755 (1973)...................... 21
Zimmer v. KcKeithen, 485 F. 2d 1297 (5th Cir. 1973),
en banc, aff'd. sub nom. East Carroll Parish School Bd.
V. Marshall, 424 U. S. 636 (1976) ....................... 20, 22, 26
Statutes
Texas Civil Practice and Remedies C o d e .......................... 14
Texas Constitution, Art. V, Sec. 18 & 1 9 .................... 16
Texas Constitution, Article 5, Section 8, ......... 14, 15, 22
Texas Government C o d e ..........................................14-16
Texas Rules of Civil P r o c e d u r e ..................................15
Other Authorities
28 Howard Law Journal No. 2, pp. 495-513, 1985,
Engstrom, Richard L., "The Reincarnation of the
Intent Standard: Federal Judges and At-Large
Election Cases." ............................................... 26
x
Senate Report No. 417, 97th Cong.,
2d Sess. (1982), reprinted in
1982 D. S. Code Cong. & Ad. News 177 ................ 21, 22, 27,
28, 30
Texas Jurisprudence............................................ 15
xi
STANDARDS OF REVIEW
In Thornburg v. Gingles, 478 U. S. 30, 106 S. Ct. 2752, 2781-
2, 92 L. Ed. 2d 25 (1986), the Supreme Court reviewed its prior
cases in the face of a contention from North Carolina and the
Untied States that an ultimate conclusion of vote dilution is a
mixed question of law and fact subject to de novo review on appeal,
reaffirmed its view that an ultimate finding of vote dilution is a
fact question subject to the clearly-erroneous standard of Rule
52(a). See also, Jones v. City of Lubbock, 727 F. 2d 364, 371
(5th Cir. 1984).
The trial court's finding of vote dilution in district judge
elections is reviewable under the clearly erroneous standard.
Errors of law, including use of an improper legal standard in
evaluating the at-large electoral system for district judges in
Texas, are reviewable free of the clearly erroneous rule.
Thornburg v. Gingles, 106 S. Ct. 2752, 2781-2, (1986).
NOTES ON ORGANIZATION OF BRIEF
Plaintiffs-Appellees' Brief on Remand to the Court argues only
the issues posed by this Court in its letter of August 6, 1991,
Other issues are argued in the Briefs of Plaintiffs-Appellees filed
previously in this cause.
Xll
STATEMENT OF JURISDICTION
The Trial Court had jurisdiction of this case pursuant to 28
U. S. C. 1343(3) and (4), upon causes of action arising under 42
U. S. C. 1971, 1973, 1983, 1988, and the XIV and XV Amendments to
the United States Constitution. Relief was sought under 28 U. S.
C. 2201, 2202, and Rule 57, F. R. C. P.
This Court has jurisdiction to hear this appeal by virtue of
28 U. S. C. 1292 (b), in that the decision appealed has been
certified as an appealable interlocutory order of the United States
District Court for the Western District of Texas; and by virtue of
28 U. S. C. 1292 (a)(1) in that the decisions of January 2 and
January 11, 1990, issued an injunction.
This Court has jurisdiction under the terms of the United
States Supreme Court's remand in Houston Lawyers' Assn. v. Attorney
General of Texas, 111 S. Ct. 2376 (1991).
1
STATEMENT OF THE ISSUES
ISSUE PAGE
SECTION I: 9
What degree of deference should this court extend to the
district court's conclusion that the state's interest in
the present electoral scheme did not outweigh minority
interests in a more representative scheme? What is the
standard of review? Did the district court so find?
SECTION II: 11
What are the state's interests, if any, in maintaining
the present electoral scheme? Explain.
SECTION III: 18
Justice Steven's opinion for the court recognized the
state's interest in linking the geographical area for
which a trial judge is elected to its jurisdiction. The
court held that this interest was to be weighed in a
determination of liability. Please explain your position
regarding such an analysis. You should consider:
a) . 18
What does a court weigh the state's interest
in linkage against? Is it weighed against
found dilution? How?
b) . 20
Who bears the burden of proof? Does the
Burdine construct in Title VII cases offer a
usable model?
c) . 23
Does the weighing present a question of fact
or a question of law, or a mixed question?
That is, who decides?
SECTION IV: 24
Is the state's interest adequately weighed by inquiry
suggested by Ginqles? If not, what additional inquiry is
required to determine liability? Would inquiry into the
cause of racial bloc-voting (e. g. , inquiry into the
existence of straight-ticket voting) be relevant to this
post-Ginqles weighing of state's interest?
2
SECTION V: 26
If weighing of the state's interest takes place as a part
of the court's assessment of the "totality of the
circumstances," then how should the court weigh state's
interest with other Zimmer factors in order to determine
whether there is liability?
SECTION VI: 29
Given the state's interest in linkage, must a plaintiff
prove as an element of her claim that only changes in the
linkage (e. g. single member districts as opposed to
changes in rules governing single shot voting, and
majority runoff requirement) will remedy the dilution?
For example, if a majority runoff requirement is a
possible cause of dilution, must a plaintiff prove that
it was not or should it be for the state to prove? Is
there record evidence from which the court can determine
the relative contributions to any found dilution of the
distinct elements of the total electoral process; e. g.
any contribution to found dilution of majority run-off
requirements, designated positions, etc.?
3
STATEMENT OF THE CASE
Course of Proceedings and Disposition Below
Pursuant to Rule 28, Federal Rules of Appellate Procedure,
Appellees do not disagree with the State Defendants-Appellants'
statement of the course of proceedings and disposition below as
stated in their Original Brief at pages 2-5, and Brief on Remand at
pages 2-3.
Statement of the Facts
District judges in Texas (trial level judges) run for four
year terms in partisan primaries, which have a majority vote
requirement. In the general election, a plurality of the vote
wins. Vacancies are filled by appointment by the governor. Each
candidate must file for a specific district court, which are
numbered. Each district is coincident with a county boundary
(except for the 72nd District Court which includes both Lubbock and
Crosby counties). Elections are at-large, county wide. The number
of district judges in the counties under attack varies from three
in Midland County to 59 in Harris County.
Jurisdiction of district courts is statewide. Nipper v. U-
Haul Co., 516 S.W.2d 467, 470 (Tex. Civ. App. 1974). Venue, on the
other hand, is provided by statute. Specialized courts (criminal,
domestic relations, juvenile, civil) are merely district courts
which are required by statute to give preference to certain types
of cases. Texas district judges have both decision making and
administrative roles. Administrative duties, such as making local
4
rules, are usually carried out in concert with other district
judges.
The Court's attention is called to the Original Brief of
Plaintiffs-Appellees, pp. 3-4, previously filed in this cause
regarding facts proved at trial. Plaintiffs-Appellees would also
call the Court's special attention to the original amicus brief
previously filed by the United States, pp. 2-12, for a full
statement of the Texas judicial system and district court decision.
5
SUMMARY OF THE ARGUMENT
Section 2 of the Voting Rights Act, 42. U. S. C. 1973, has
been determined by the Supreme Court to cover judicial elections.
The findings of the trial court regarding the strength of the
state's interest in continuing to elect district judges at-large
are factual findings subject review under the clearly erroneous
test of Rule 52(a), F. R. C. P. Thornburg v. Gingles, 478 U. S. 30
(1986). The Supreme Court decision in this case did not change
that standard of review. Further, it did not set a new standard
for evaluating the state's interest in the present electoral
scheme. Rather, it reaffirmed that a state's interest is merely
one of the factors to be considered in evaluating the "totality of
the circumstances" to make a vote dilution finding. Houston
Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct. 2376 (1991)
The state has no compelling interest in maintaining the
present at-large electoral scheme. The basis of their argument
that at-large elections promote judicial integrity by linking
jurisdiction and electoral base is undercut by a factual
misstatement. There is no coincidence between a district court's
jurisdiction and the electoral base of the district judge.
District courts have jurisdiction statewide. Nipper v. U-Haul Co.,
516 S. W. 2d 467 (Tex. Civ. App. 1970). District judges are
elected by judicial district, which may be a county or a collection
of counties.
6
The practice in Texas is that judges do not preside only in
the area where they were elected. Justices of the Peace are
elected by sub-district, yet have jurisdiction countywide.
Visiting judges preside anywhere in the state. A case may be heard
by any district judge without regard to whether the litigants are
eligible voters in his judicial district.
Whatever state interest there may be in at-large judicial
elections is not weighed separately against a judicial finding of
vote dilution based upon the "totality of the circumstances."
Rather, state interest is one of the "totality" to be considered by
the trial court is reaching a factual finding of vote dilution.
Houston Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct.
2376 (1991).
The burden of proof in vote dilution cases is upon the
plaintiff to produce evidence that the political processes leading
to nomination and election are not equally open to participation by
the minority group. Chisom v. Roemer, 111 S. Ct. 2354 (1991).
The question of state interest is a fact question to be given
proper deference by the reviewing court. Thornburg v. Gingles, 478
U. S. 30 (1986).
The asserted state interest is properly evaluated under the
"totality of the circumstances test." Houston Lawyers' Assn. v.
Attorney General of Texas, 111 S. Ct. 2376 (1991) . To inquire into
the cause of racial bloc voting is contrary to the Supreme Court's
7
direction in Thornburg v. Gingles, 478 U. S. 30 (1986), and such
inquiry represents an attempt to reinject the intent standard into
vote dilution claims.
The question of a state's interest in at-large elections is of
relatively minor importance, and does not overcome a finding of
vote dilution. Senate Report, p. 29, n. 117. The most important
factors to be proved are the extent to which minority candidates
have been elected to office and the extent to which voting is
racially polarized. Thornburg v. Gingles, 478 U. S. 30 (1986).
A plaintiff need not prove the contribution of each aspect of
an at-large electoral system to the dilution of minority voting
strength. Vote dilution is a factual finding of the trial court
based upon the "totality of the circumstances" coupled with an
intense local appraisal of the operation of the electoral scheme in
question.
8
ARGUMENT AND AUTHORITIES
SECTION I: What degree of deference should this court extend
to the district court's conclusion that the state's interest in the
present electoral scheme did not outweigh minority interests in a
more representative scheme? What is the standard of review? Did
the district court so find?
District Court Findings. The trial court outlined the State's
claims of its interest in the present at-large electoral scheme for
district judges. Finding of Fact No. 34, pp. 75-6, Memorandum and
Order of November 8, 1989:
1. Judges elected from smaller districts would be more
susceptible to undue influence by organized crime
2. Changes in the current system would result in costly
administrative changes for the District Clerk's office.
3. System of specialized courts in some counties would
disenfranchise all voters' rights to elect judges with
jurisdiction over some matters.
Although it did not find that the present system was
maintained on a tenuous basis as a pretext for discrimination, the
district judge was not persuaded that the reasons offered for its
continuation were compelling. Finding of Fact No. 37, pp. 77,
Memorandum and Order of November 8, 1989.
Appellants' Arguments. The State appellants have argued in
their most recent brief that the relative weight afforded these
interests is a legal question, and that the trial court's assertion
9
that these interests are not compelling is a conclusion of law.
Brief on Remand for State Defendants-Appellants, p. 17.
Appellant Entz asserts that no deference is due the trial
court's findings since the question of whether the state's interest
is compelling is a legal question. If the court finds that the
interests are not compelling, then it must consider them under the
"totality of the circumstances" test. Brief of Appellant Dallas
County District Judge F. Harold Entz, p. 2.
Appellees' Reply. This court is required by the holding of
the Supreme Court in Thornburg v. Gingles, 106 S. Ct. 2752 (1986),
to defer to the trial court's factual finding that the state's
interest in the present electoral scheme is not compelling, absent
such finding being clearly erroneous. The ultimate finding of vote
dilution is a fact question subject to the clearly erroneous rule.
Thornburg v. Gingles, at 2781:
We reaffirm our view that the clearly-erroneous test of
Rule 52(a) is the appropriate standard for appellate
review of a finding of vote dilution.
Since the Supreme Court held that the question of a state's
interest is to be evaluated within the context of the "totality of
the circumstances," Houston Lawyers' Assn. v. Attorney General of
Texas, ill S. Ct. 2376, 2380 (1991) and the Court held in Gingles
that Rule 52(a) applies to the "totality of the circumstances"
evaluation, then that standard applies to this court's review of
the district court's findings.
10
Assuming, arguendo, that there is any compelling state
interest to be considered under the totality of the circumstances
test, then the finding regarding that interest is a factual
determination. In a Fourteenth Amendment context, assertions of
compelling state interest are factual findings to be made by the
trial court based upon "all relevant circumstances." Batson v.
Kentucky, 476 U. S. 79, 96-97 (1986). The state has the burden of
establishing the compelling nature of the state's interest with
actual proof, not just assertions and assumptions. Id. at 97. As
seen below, the state's avowal of its interest did not survive the
fact finding process of the trial court.
SECTION II: What are the state's interests, if any, in
maintaining the present electoral scheme? Explain.
District Court Findings. As stated in Section I above, the
trial court found that the state had posited freedom from undue
influence, administrative costs, and specialized courts as its
interests in maintaining the present at large system for election
of district judges.
Appellants' Arguments. The State has argued for the first
time on appeal that maintenance of judicial accountability and
judicial independence which in turn maintain judicial integrity is
the state interest at issue. It further posits that the method by
which this interest is fostered is by linking the jurisdictional
base of district judges directly to the electoral base. It alleges
11
that the common base is the same as the basic unit of Texas
government, the county, and that such linkage of jurisdictional and
electoral base is crucial. Brief on Remand for State Defendants-
Appellants, p. 17-18.
Appellant Entz has adopted the alleged linkage of elective
base and jurisdiction as the state interest, which presumably
justifies a strong presumption against radically changing the very
office of district judge. He further asserts that specialization
defines the office, and therefore is a compelling interest. Brief
of Appellant Dallas County District Judge F. Harold Entz, pp. 2,
14, 17.
Appellant Wood points to the state's fundamental political
decision to have trial judges who wield full judicial authority
alone, and to the historical preference of the citizens of Texas
for an elected judiciary in which each judge is accountable to each
voter and is independent from special interest groups. Wood also
notes that venue, jury selection pools, docket equalization, and
specialized court system are important state interests. Finally,
she asserts that the electoral district is coincident with the
supposed countywide jurisdictional district. Appellant Defendant-
Intervenor Harris County District Judge Sharolyn Wood's Brief on
Remand, p. 30-31.
12
Appellees' Reply.
Jurisdiction and Electoral Base. Each of the above set of
assertions, relying upon the alleged coincidence of electoral and
jurisdictional base to justify the at-large electoral scheme in the
face of proven discrimination, are based upon a misstatement of the
jurisdiction of Texas district courts. There is no concurrence
between jurisdiction and electoral base. District courts have
jurisdiction statewide. Nipper v. U-Haul Co., 516 S.W.2d 467, 470
(Tex. Civ. App. 1974) . District judges are elected from judicial
districts, which may be one or several counties.1
In addition, the concept of "primary jurisdiction," taken to
mean jurisdiction within the county, concocted by the appellants is
a fiction - there is no such thing. A court has or does not have
jurisdiction. There is no "primary" and "secondary" jurisdiction.
The relation of judicial districts to counties is
haphazard. There is an intricate web of overlapping districts, for
example:
3rd Judicial 87th Judicial 349th Judicial
District: District: District:
Anderson Co.
Henderson Co.
Houston Co.
Anderson Co.
Freestone Co.
Leon Co.
Limestone Co.
Anderson Co.
Houston Co.
Source: State Defendants' Exhibits 2 & 3.
13
Jurisdiction is determined by the Texas Constitution and
statutes.2 Venue, often confused with jurisdiction, is determined
by a complex set of statutes.3 The general venue rule is that a
case "shall be brought in the county in which all or part of the
cause of action accrued or in the county of defendant's residence
if defendant is a natural person."4 Some venue rules are
mandatory, for example, an action for mandamus against the head of
a department of the state government must be brought in Travis
County, the site of the state capital.5 There are many exceptions
to the general venue rule. Nowhere in any of the venue statutes is
venue tied to electoral base.
2 Article 5, Section 8, Texas Constitution: District Court
jurisdiction consists of exclusive, appellate and original
jurisdiction of all actions, proceedings, and remedies, except in
cases where exclusive, appellate or original jurisdiction may be
conferred by the Constitution or other law on some other court,
tribunal, or administrative body. District Court judges shall have
the power to issue writs necessary to enforce their jurisdiction.
The District Court shall have appellate jurisdiction and general
supervisory control over the County Commissioners Court, with such
exception and under such regulations as may be prescribed by law.
Texas Government Code, Sec. 24.007, Jurisdiction: The district
court has the jurisdiction provided by Article V, Section 8, of the
Texas Constitution.
Texas Government Code, Sec. 24.008, Other Jurisdiction: The
district court may hear and determine any cause that is cognizable
by courts of law or equity and may grant any relief that could be
granted by either courts of law or equity.
3 Texas Civil Practice and Remedies Code, Ch. 15.
4 Texas Civil Practice and Remedies Code, Sec. 15.001
5 Texas Civil Practice and Remedies Code, Sec. 15.014
14
Jurisdiction and venue are to be distinguished. "Jurisdiction"
is the power of a court to decide a controversy between parties and
to render and enforce a judgment with respect thereto, while
"venue" is the proper place where that power is to be exercised.
Subject matter jurisdiction cannot be conferred by agreement and
exists by reason of authority vested in a court by the Constitution
and statutes. Garcia v. Dial, 596 S. W. 2d 524, 527 (Cr. App.
1980) Venue, on the other hand, may be conferred by agreement.
Furthermore, as a rule, jurisdiction may not be waived by the
parties, 7 2 Tex Jur 413, Venue, Sec. 2, whereas venue is so
ephemeral that, unless properly asserted, it may be waived.6 In
addition, in multi-county districts, a judge may act in a case in
any of the relevant counties regardless of where the case arose.7
By amending the state constitution in 1985, the voters of the
state delegated to the voters of each county the policy decision
whether a judicial district may be smaller than a county.8 Thus,
Texas Rules of Civil Procedure. Rule 86. Motion to
Transfer Venue.
1. Time to File. An objection to improper venue is waived if not
made by written motion filed prior to or concurrently with any
other plea, pleading or motion except a special appearance motion
provided for in Rule 120a. A written consent of the parties to
transfer the case to another county may be filed with the clerk of
the court at any time. ...
7 Texas Government Code, Section 24.017.
8 ...Judicial districts smaller in size than an entire county
may be created subsequent to a general election where a majority of
the persons voting on the proposition adopt the proposition "to
allow the division of ____ County into judicial districts composed
of parts of _____ County." ... Texas Constitution, Art. 5, Sec.
7a(i).
15
by leaving the decision up to county voters, the state as a whole
has abandoned whatever interest it may have had in its alleged
linkage between electoral base and jurisdiction.
The structure and practice of the Texas court system strongly
suggests that State of Texas has no interest in continuing at-large
judicial elections by county.
Justice of the Peace courts, which have jurisdiction over an
entire county, are elected from county subdistricts. Bradley v.
Swearingen, 525 S. W. 2d 280, 282 (Tex. Civ. App. 1975). Tex.
Const. Art. V, Sec. 18 & 19. Tex. Govt. Code, Sec. 27.031,
Jurisdiction.
State law authorizes a system of "visiting judges," which
practice allows retired judges to fill-in for elected judges when
docket conditions require. Texas Government Code, Ch. 75.101. A
litigant has no electoral recourse against a visiting judge. Reed
v. State, 500 S. W. 2d 137, 138 (Tex. Crim. App. 1973).
Aspects of any particular case may be heard by any judge
depending upon the docketing system in use; for example, in Harris
County there is a central docketing system which assigns hearings
to any available court.
Since the jurisdiction of the district courts is statewide,
and since Texas has decided to elect district judges from areas
smaller than the entire state, it has made the policy decision to
permit the appearance that lower court judges are accountable to
16
The notion that jurisdiction andonly part of the electorate.9
electoral base are tied together in order to facilitate judicial
integrity, or for any reason, is factually inaccurate. Thus the
state's basic argument for maintaining judicial integrity through
at-large elections has failed since it can prove neither that its
alleged interest is implicated in the challenged practice, Tashjian
v. Republican Party of Connecticut, 107 S. Ct. 544, 551 (1986),
nor that the practice advances such interest. Eu v. San Francisco
Cty. Democratic Cent. Com., 109 S. Ct. 1013, 1023 (1989).
Remedial Considerations. Even if the State's assertions
regarding judicial integrity are correct, remedies are available
which can protect these interests. Remedy is, first of all, a
state legislative decision which may embrace sub-districts along
with other options that will satisfy legitimate state interests:
smaller than a county multi-member districts, limited voting, or
cumulative voting. Jurisdiction and venue could remain unchanged.
As stated by Judge Johnson in his dissent, 914 F. 2d at 669, note
33:
Once again, the concurrence's asserted concern is
premised on the anticipated remedy — subdistricting.
While the Supreme Court, in Gingles, did indicate that a
"single-member district is generally the appropriate
standard against which to measure minority group
potential to elect," it did not mandate the imposition
of subdistricts to remedy every instance of illegal vote
dilution. The concurrence, by erroneously factoring in,
at the liability phase, concerns which may never be borne
9 League of United Latin Am. Citizens v. Clements, 902 F. 2d
293, 317 (5th Cir. 1990), Johnson, J., dissenting
17
out, refuses to properly acknowledge the intent of the
Voting Rights Act.
SECTION III: Justice Steven's opinion for the court
recognized the state's interest in linking the geographical area
for which a trial judge is elected to its jurisdiction. The court
held that this interest was to be weighed in a determination of
liability. Please explain your position regarding such an
analysis. You should consider:
a). What does a court weigh the state's interest in
linkage against? Is it weighed against found dilution?
How?
The Supreme Court. Justice Stevens wrote, Houston Lawyers'
Assn. v. Attorney General of Texas, 111 S. Ct. at 2380-81:
... Even if we assume, arguendo, that the State's
interest in electing judges on a district-wide basis may
preclude a remedy that involves redrawing boundaries or
subdividing districts, or may even preclude a finding
that vote dilution has occurred under the "totality of
the circumstances" in a particular case, that interest
does not justify excluding elections for single-member
offices from the coverage of the Sec. 2 results test.
Rather, such a state interest is a factor to be
considered by the court in evaluating whether evidence in
a particular case supports a finding of vote dilution
violation in an election for a single-member office.
...Rather we believe that the State's interest in
maintaining an electoral system - in this case, Texas,
interest in maintaining the link between a district
judge's jurisdiction and the area of residency of his or
her voters - is a legitimate factor to be considered by
court among the "totality of the circumstances" in
determining whether a Sec. 2 violation has occurred.
... Because the State's interests in maintaining the at-
large, district-wide electoral scheme for single-member
offices is merely one factor to be considered in
evaluating the "totality of the circumstance," that
interest does not automatically, and in every case,
outweigh proof of racial vote dilution.
18
Appellants' Arguments. The State has argued, Brief on Remand
for State Defendants-Appellants, p. 19, that a state's interest is
of "constitutional magnitude" and must be weighed only against a
competing constitutional interest.
Appellant Entz asserts that a compelling state interest would
"trump" what otherwise would be a Section 2 violation, and that
even if not compelling, the state's interest will override a mere
statutory violation. Brief of Appellant Dallas County District
Judge F. Harold Entz, pp. 2, 12.
Appellant Wood contends that any remedy is to be defended
against evidence that it intrudes upon the constitutional rights of
the state to structure its core functions. Appellant Defendant-
Intervenor Harris County District Judge Sharolyn Wood's Brief on
Remand, p. 36.
Appellees' Reply. Justice Stevens has stated explicitly that
a state's interest is "merely one of the factors" to be considered
in a "totality of the circumstances" analysis. As such it is
considered along with the other "typical factors." There is no
authority in Houston Lawyers' Assn. v. Attorney General of Texas,
111 S. Ct. 2376, for an analysis that posits state interest as a
rival to a determination that the Voting Rights Act has been
violated. The Supreme Court has simply reaffirmed the method of
analysis that this Circuit has long used: state policy underlying
the use of at-large districting is one factor to be considered to
19
prove the fact of dilution. "...[A]11 of these factors need not be
proved to obtain relief.” Zimmer v. KcKeithen, 485 F. 2d 1297,
1305 (5th Cir. 1973), en banc, aff'd. sub nom. East Carroll Parish
School Bd. v. Marshall, 424 U. S. 636 (1976). It certainly is not
a threshold factor, as in Gingles, which must be proven to
establish a vote dilution case. Houston Lawyers' Assn. v. Attorney
General of Texas, 111 S. Ct. at 2380.
Appellants rely upon Gregory v. Ashcroft, 111 S. Ct. 2395
(1991), to suggest that the state has an interest of constitutional
magnitude in at-large elections for district judges. Gregory does
not apply. Gregory is a case of statutory interpretation: does the
Federal Age Discrimination in Employment Act apply to appointed
Missouri state judges? In accord with cited precedent that
requires a "plain statement" of Congressional intent to interfere
with a state's setting of qualifications for its own officials, the
Supreme Court decided that Congress had not made it "unmistakably
clear" that appointed judges were covered by the Act. In this
case, however, the Court decided that Congress had made it clear
that judicial elections are covered by the Voting Rights Act.
b) . Who bears the burden of proof? Does the Burdine
construct in Title VII cases offer a usable model?
Appellants' Arguments. The State has suggested a burden
shifting approach to the question of dilution. While the plaintiff
must prove the Gingles factors, and bears the ultimate burden in
establishing that the current election system results in a denial
20
of voting rights, such shifting suggests that the State need only
produce evidence of its interest in the maintenance of the system
and the non-discriminatory reasons for retaining the system. Brief
on Remand for State Defendants-Appellants, p. 24.
Appellant Entz, on the other hand, correctly states that the
Title VII model is not helpful because it would inhibit the
required assessment of the totality of the circumstances. Brief of
Appellant Dallas County District Judge F. Harold Entz, p. 2.
Appellees' Reply. A plaintiff's burden is to bring forward
evidence that a challenged election practice has resulted in the
denial or abridgment of the right to vote based on color or race.
Chisom v. Roemer, 111 S. Ct. 2354, 2363 (1991). A plaintiff must
"produce evidence to support findings that the political processes
leading to nomination and election were not equally open to
participation by the group in question - that its members had less
opportunity than did other residents to participate in the
political processes and to elect legislators [representatives] of
their choice." White v. Regester, 412 U. S. 755, 766 (1973);
Whitcomb v. Chavis, 403 U. S. 124, 149-153 (1971).
One of the "totality of the circumstances" factors is the
state policy behind at-large elections. The legislative history to
the Voting Rights Act, Senate Report No. 417, 97th Cong., 2d Sess.
(1982) , reprinted in 1982 D. S. Code Cong. & Ad. News 177,
(hereinafter, Senate Report) specifically warns that "even a
21
consistently applied practice premised on a racially neutral policy
could not negate a plaintiff's showing through other factors
[derived from Zimmer v. McKeithen, supra] that the challenged
practice denies minorities fair access to the process." Senate
Report at 29, n. 117.
This warning has been respected by courts reviewing the
question. U. S. v. Marengo Co. Com'n., 731 F. 2d 1546, 1571 (11th
Cir. 1984) :
Under an intent test, a strong state policy in favor of
at-large elections, for reasons other than race, is
evidence that the at-large system does not have a
discriminatory intent. On the other hand, a tenuous
explanation for at-large elections is circumstantial
evidence that the system is motivated by discriminatory
purposes. [Citations omitted]. State policy is less
important under the results test: "even a consistently
applied practice premised on a racially neutral policy
would not negate a plaintiff's showing through other
factors that the challenged practice denied minorities
fair access to the process. [Senate Report, at 29, n.
117]. But state policy is still relevant insofar as
intent is relevant to result: evidence that a voting
device was intended to discriminate is circumstantial
evidence that the device has as discriminatory result.
See Major v. Treen, 574 F. Supp. at 354-55. Moreover,
the tenuousness of the justification for a state policy
may indicate that the policy is unfair. Hendrix v.
Joseph, 559 F. 2d 1265, 1269-1270 (5th Cir. 1977).
In cases in which the jurisdiction allows a choice between an
at-large and district electoral system, as does Texas,10 then the
courts have routinely held that this factor is neutral. Bolden v.
City of Mobile, 423 F. Supp. 384 (S. D. Ala. 1976), affirmed 571 F.
2d 238 (5th Cir. 1978), reversed on other grounds, 446 U. S. 55
10 Texas Constitution, Art. 5, Sec. 7a(i)
22
(1980). Accord: Cross v. Baxter, 604 F. 2d 875, 884-85 (5th Cir.
1979); Hendrix v. Joseph, 559 F. 2d 1265, 1270 (5th Cir. 1977).
The court in Nevett v. Sides, 571 F. 2d 209, 224 (5th Cir. 1978)
held that "a tenuous state policy in favor of at-large districting
may constitute evidence that other, improper motivations lay behind
the enactment or maintenance of the plan." As noted by the Hendrix
court at 1269, "the manifestation of a state's policy toward the
at-large concept can most readily be found in the sum of its
statutory and judicial pronouncements." Texas has a long and
shameful history of denigration of minority voting rights. To
suggest that a state that produced such a plethora of
discriminatory laws lay aside such prejudice to endorse at-large
elections is unreasonable and irrational.
c) . Does the weighing present a question of fact or a
question of law, or a mixed question? That is, who
decides?
Appellants' Arguments. Both the State defendants, Brief on
Remand for State Defendants-Appellants, pp. 16-17, and Judge Entz,
Brief of Appellant Dallas County District Judge F. Harold Entz, p.
2, argue that the weighing of the state's interest in the at-large
electoral system is a legal question.
Appellees' Reply. Both are wrong. Since an ultimate finding
of vote dilution is a fact question subject to the clearly
erroneous rule, Thornburg v. Gingles, 106 S. Ct. at 2781, and
since the question of a state's interest is to be evaluated within
23
the context of the "totality of the circumstances," Houston
Lawyers' Assn. v. Attorney General of Texas, 111 S. Ct. 2376, 2380,
and since Rule 52(a) applies to "totality of the circumstances"
evaluation, then that standard applies to a consideration of the
state's interest.
SECTION IV: Is the state's interest adequately weighed by
inquiry suggested by Ginqles? If not, what additional inquiry is
required to determine liability? Would inquiry into the cause of
racial bloc-voting (e. g., inquiry into the existence of straight-
ticket voting) be relevant to this post-Gingles weighing of state's
interest?
a. State's Interests.
Appellants' Arguments. The State suggests that since the its
interest in at-large elections is of constitutional dimension, then
its interest is not adequately weighed by the Gingles inquiry.
Brief on Remand for State Defendants-Appellants, p. 14.
Judge Entz contends that the state's interest should be
considered an affirmative factor that mitigates against a finding
of discriminatory results, and, if compelling, prevents such a
finding. Brief of Appellant Dallas County District Judge F. Harold
Entz, p. 3.
Appellees' Reply. Since the question of a state's interest
arises under the scope of the Voting Rights Act, and since the
Supreme Court has determined that this question is to be considered
under the "totality of the circumstances" test, Houston Lawyers'
Assn. v. Attorney General of Texas, 111 S. Ct. at 2380, then its
24
interest is adequately considered by the Gingles inquiry. The
Supreme Court made it clear in Gingles that the inquiry set out in
that opinion goes to the "totality of the circumstances."
b. Causation.
Appellants' Arguments. The State suggests that courts should
inquire into the cause of racial bloc voting to determine whether
the targeted part of the electoral system caused the alleged
discrimination, or whether, instead, other factors cause it. Brief
on Remand for State Defendants-Appellants, p. 27.
Judge Entz believes that partisan voting patterns are not
relevant to a "totality of the circumstances" evaluation, rather,
that they are relevant to the question of whether polarized voting
exists. Brief of Appellant Dallas County District Judge F. Harold
Entz, p. 3.
Judge Wood says that partisan voting patterns better explain
the results in Texas judicial races than does racial voting. She
asserts, without authority, that Section 2 requires a plaintiff to
show that elections are dominated by racial politics. Appellant
Defendant-Intervenor Harris County District Judge Sharolyn Wood's
Brief on Remand, pp. 27-27.
Appellees' Reply. The Supreme Court has rejected inquiry into
causation. Thornburg v. Gingles, 478 U. S. 30, 62 (1986) . Its very
definition of racial bloc voting, "a consistent relationship
25
between the race of the voter and the way in which the voter votes"
or "black voters and white voters vote differently," precludes
inquiry into causation. Thornburg v. Gingles, 106 S. Ct. at 2768,
n. 21.
To interject a notion of causation into the inquiry of
polarized voting is simply an attempt to return the intent standard
to vote dilution analysis. To accept such an argument would be to
change the empirical inquiry from the question of whether
minorities and whites prefer different candidates to the question
of why a particular candidate wins or loses. In the latter case,
the analysis no longer addresses the issue Congress mandates be
considered: the extent to which voting is racially polarized.11
SECTION V: If weighing of the state's interest takes place
as a part of the court's assessment of the "totality of the
circumstances," then how should the court weigh state's interest
with other Zimmer factors in order to determine whether there is
liability?
Appellant's Arguments. Only Judge Entz has addressed this
question. He suggests that if the state's interest is not
compelling, then it should be considered as a part of the court's
overall assessment. Brief of Appellant Dallas County District
Judge F. Harold Entz, p. 3.
11 For a complete discussion of the issue of reinjecting the
intent standard, see: 28 Howard Law Journal No. 2, pp. 495-513,
1985, Engstrom, Richard L. , "The Reincarnation of the Intent
Standard: Federal Judges and At-Large Election Cases."
26
Appellees' Reply. Fortunately, the legislative history of the
Voting Rights Act, sheds light on the question. The history sets
several factors for court review, including state policy which is
listed as an "additional factor that in some cases ha[s] had
probative value." Note 117, p. 29, Senate Report, states:
If the procedure markedly departs from past practices or
from practices elsewhere in the jurisdiction, that bears
on the fairness of its impact. But even a consistently
applied practice premised on a racially neutral policy
would not negate a plaintiff's showing through other
factors that the challenged practice denies minorities
fair access to the process.
The courts have declared repeatedly that some of the typical
factors are more important than others.
"[R]ecognizing that some Senate Report factors are more
important to multimember district vote dilution claims than others
... effectuates the intent of Congress." Thornburg v. Gingles, 106
S. Ct. at 2765, n. 15. Of primary importance are:
1. The extent to which minority group
members have been elected to office
in the jurisdiction
2. The extent to which voting in the
elections of the jurisdiction has
been racially polarized
Placing importance upon electoral success and voting patterns
furthers the purpose of the Voting Rights Act to "correct an active
history of discrimination ... [and] deal with the accumulation of
discrimination. Latin American Citizens Council #4434 v. Clements,
914 F. 2d 620, 667, n. 31 (5th Cir. 1990), Johnson, J. , dissenting.
27
Furthermore, the legislative history concluded that some
factors are of less importance, including the tenuousness of the
state policy behind at-large judicial elections. "[I]n light of
the diminished importance this factor has under the results test,
8. Rep. No. 417 at 29 & n. 117, 1982 U. S. Code Cong. & Admin. News
at 2 07 & n. 117, we doubt that the tenuousness factor has any
probative value for evaluating the 'fairness' of the electoral
system's impact." Jones v. City of Lubbock, 727 F. 2d 364, at 383
(1984) .12
Finally, all the enhancing factors that the trial court found
in this case (at-large; lack of geographic sub-districts; a large
district; numbered posts; majority vote requirement; and staggered
terms) have been determined by prior decisions of this court to be
dilutionary. Jones v. City of Lubbock, 727 F. 2d 364, 383 (5th
Cir. 1984).
The factual determination of vote dilution is made based upon
an examination of all of these factors and intense local inquiry.
Thornburg v. Gingles, 106 S. Ct. at 2781 (1986).
The other less important factor is "unresponsiveness,"
which is no longer a necessary part of a plaintiff's case. Senate
Report 207, n. 116. Rogers v. Lodge, 458 U. S. 613, n. 9 (1982)
28
SECTION VI: Given the state's interest in linkage, must a
plaintiff prove as an element of her claim that only changes in the
linkage (e. g. single member districts as opposed to changes in
rules governing single shot voting, and majority run-off
requirement) will remedy the dilution? For example, if a majority
run-off requirement is a possible cause of dilution, must a
plaintiff prove that it was not or should it be for the state to
prove? Is there record evidence from which the court can determine
the relative contributions to any found dilution of the distinct
elements of the total electoral process; e. g. any contribution to
found dilution of majority run-off requirements, designated
positions, etc.?
Appellants' Arguments. The State maintained that plaintiffs
must prove that the challenged practice is the cause of the alleged
discrimination. Brief on Remand for State Defendants-Appellants, p.
27.
Judge Entz takes a similar position. He concedes that a
plaintiff should not have to negate all possible causes of
discrimination, but urges that a defendant may prove that something
else has caused the disparate result, and such proof would negate
a Section 2 violation. Brief of Appellant Dallas County District
Judge F. Harold Entz, p. 3.
Judge Wood only argues that proved dilution should be remedied
without great violence to state institutions. Appellant Defendant-
Intervenor Harris County District Judge Sharolyn Wood's Brief on
Remand, p. 29.
Appellees' Reply. There is no requirement that a plaintiff
prove that a particular aspect of an at-large election system has
prevented the political access of minorities. In this case, the
29
challenge was to the at-large election system for district judges.
No particular aspect of the extant system was singled out for
attack other than the at-large feature. Certain aspects of the
system were noted by the trial court as enhancing the proved
discrimination: numbered posts, majority rule requirement in
primary elections, and a large district in five of the targeted
counties. Finding of Fact No. 27, pp. 71-72; Conclusion of Law No.
15, p. 89. The courts have never required that a plaintiff
establish the contribution of each aspect of the election system to
the proved discrimination.13 Rather, Congress has found that these
factors enhance the tendency of the at-large system to submerge
minority voting strength. Thornburg v. Gingles, 106 S. Ct. at
2766, n. 15. This Court has noted that the existence of these
factors in an at-large election scheme aggravates its impact.'
"[I]ndirectly, these features 'inescapably' act as formal obstacles
to effective minority participation." Jones v. City of Lubbock,
727 F. 2d 364, 385 (5th Cir. 1984).
Once the trial court has found vote dilution, its duty is to
fashion relief so that it provides a complete remedy and fully
provides equal opportunity for minority citizens to participate and
to elect candidates of their choice. Senate Report, p. 31; Kirksey
v. Board of Supervisors, 554 F. 2d 139 (5th Cir. 1977) en banc,
cert, denied, 434 U. S. 968 (1977); Jones v. City of Lubbock, 727
13 Thornburg v. Gingles, 106 S. Ct. at 2770, notes that these
factors should be taken into account in establishing the amount of
white bloc voting that can generally minimize or cancel minority
voters' ability to elect candidates of their choice.
30
F. 2d at 386-387; Monroe v. City of Woodville, 819 F. 2d 507, 511,
n. 2 (5th Cir. 1987) ; Garza v. County of Los Angeles, 918 F. 2d
763, 776 (9th Cir. 1990).
At the remedy stage, if the proposed legislative plan includes
any of the enhancing factors, then the trial court should decide
whether the inclusion of that factor would prevent a complete
remedy. It "cannot blind itself to the effect of its districting
plan on racial groups." Jones, at 386. There is no place under
the results standard of Section 2 for requiring proof of causation
at the liability stage of a vote dilution case.
31
CONCLUSION
The Plaintiffs-Appellees, LULAC, et al., request that this
Court AFFIRM the order of the trial court which found that the at-
large system for electing Texas district judges in the targeted
counties violates Section 2 of the Voting Rights Act, and REMAND
the case to the District Court for entry of a remedial plan.
Dated: October 3, 1991
Respectfully submitted,
ROLANDO L. RIOS
Southwest Voter Registration
Education Project
201 N. St. Mary's, Suite 521
San Antonio, TX 78205
512/ 222-2102
GARRETT & THOMPSON
ATTORNEYS AT LAW
A Partnership of
Professional Corporations
Attorneys for
Plaintiffs-Appellees
SUSAN FINKELSTEIN
Texas Rural Legal Aid, Inc.
405 N. St. Mary's, Suite 910
San Antonio, TX 78205
512/ 271-3807
Attorney for Christina Moreno
32
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of
the foregoing instrument was served upon the all parties hereto b}
delivery to their attorneys of record by U. S. Mail,
prepaid, or by Federal Express, on Octoi
33
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
-- -oOo-—
HOWARD G. LEWIS, }
)
Petitioner, )
)vs, )
)
FRANK M» JORDAN, as Secretary Of )
The State of California, )
-)
Respondent, )
)and )
CALIFORNIA COMMITTEE FOR HOME )
PROTECTION; CALIFORNIA REAL )
ESTATE ASSOCIATION; CALIFORNIA )
APARTMENT HOUSE OWNERS )
ASSOCIATION; ROBERT A. OLIN; )
WILLIAM A. WALTERS, LAWRENCE )
H. WILSON, ROBERT L, SNELL, )
REG, F, DEPUY, DONALD McCLURE, )
Real Parties in Interest, )
_____________ )
PETITION FOR WRIT OF MANDATE AND
POINTS AND AUTHORITIES IN SUPPORT THEREOF
NATHANIEL 3. COLLEY
COLLEY AND McGHEE
1617 10th Street
Sacramento 14, California
LOREN MILLER
MILLER & MALONE
2824 South Western Avenue
Los Angeles, California
Steno Print & Mailing Service - Sacramento
SUBJECT INDEX
THE PETITION 1A
POINTS AND AUTHORITIES 2
INTRODUCTION 2
JURISDICTION 3
THE PARTIES 4
RELIEF SOUGHT 5
ARGUMENT
The Proposed Initiative Constitutional
Amendment Is Invalid Because The
Summary And Title Prepared By The
Attorney General Are Fatally Defective 6
The Proposal Would Violate the Fourteenth
Amendment To The United States
Constitution 12
The Proposal Represents An Unlawful
Attempt To Revise Rather Than Amend
The State Constitution 64
CASES
Abstract Investment Company vs. Hutchinson
204 Cal. App. 2d 255 (1962) 12 = 13
Banks vs. Housing Authority of San Francisco,
122 Cal. App. 2d 1 4
Banks vs. San Francisco, 122 Cal. App. 2d 1 20
Barrows vs. Jackson, 112 Cal. App. 2d 464 20
Barrows vs. Jackson, 346 U. S. 249 40
Page
i
Billings v. Hall, 6 Cal. 1, 6 26-66
Boyd v. Jordan, 1 Cal. 2d 468 10-12
Burke v. Poppy Construction Co. ,
57 Cal. 2d 463 23-24
Buchanan v. Warley, 245 U. S. 60 16-19-44
Caine v. Robbins., (Nev.) 131 Pac. ad. 516 73
City of Birmingham v. Monk, 185 Fed.
2d 859 19
Clark v. Jordan, 7 Cal. 2d 248 10
Cooper v„ Aaron, 358 U.S. 1 14
Corsi v. Mail Handlers Union, 326 U.S. 88 24
Cummings v. Hokr, 31 Cal. 2d 844 19
Epperson v. Jordan, 12 Cal. 2d 61 12
Fay v. New York, 332 U.S. 261, 282 33
Gage v. Jordan, 23 Cal. 2d 749 8
Goss v. Board of Education, 10 L„ ed 636 16
Grandolfo v. Hartman, 59 Fed. 181 (1892) 19
Gwinn v. The U .S ., 238, U.S. 347 29
Hurdv. Hodge, 334 U.S. 24 (1948) 44
James v. Marinship, 25 Cal. 2d 721 24
Katzev v. Los Angeles, 52 Cal. 2d 360 69
L. A. Investment Company v. Gary,
181 Cal. 680 J 19
CASES - CONTINUED
Page
ii
Lane v„ Wilson, 307 U. S. 268 29-30
Lee Sing, 43 Fed. 359 (1890) 19
Livermore v. Waite, 102 Cal. 113, 117-119 64-73
Lombard v. Louisiana, 10 L0 Ed. 2d 33 8 15
McFadden v. Jordan, 32 Cal. 2d 330, 332 4-5-64
Miller v. McKenna, 23 Cal. 2d 774,
783 28-65-66
Ming v. Horgan, No. 97130, Sacramento
Superior Court 21
Minor v. Happerstett, 21 Wall. 162, 165-166 36
Myers v. Anderson, 238 U.S. 369 29
Nixon v. Condon, 286, U. S. 73 15-30
Perry v. Jordan, 34 Cal. 2d 87 4
Public Utilities Commission v. U. S.
355 U.S. 534 14
Railway Mail Association v. Corsi,
326 U.S. 88 15
Rice v. Elmore, 165 Fed. 2d 3 87 3 8
Shelley v. Kraemer, 334 U.S. 1 19-28-31-32-34
Smith v. Allenright, 321 U.S. 649 15-30
Slander v. West Virginia, 100 U.S.
303, 307 32-37-40
Sterling v. Constantin, 287 U.S. 378 14
Terry v. Adams, 345 U. S. 461
CASES - CONTINUED
Page
iii
15-38
CASES - CONTINUED
14
Page
Testa v. Katt, 330 U. S„ 386
Title Insurance v. Garrott, 42 Cal.
App» 152 54
U. S. v. Harris, 106 U. S. 629 25
Virginia v. Rives, 100 U. S. 313, 317, 318 43
Williams v. Howard Johnson, et al.
268, Fed. 845 15
Windv. Hite, 58 Cal. 2d 415 72
Wirin v. Parker, 48 Cal. 2d 890 5-16
CODES
California Elections Code, Sec. 3501 6a
California Civil Code
Sec. 53 56
Sec. 382 4
Sec. 526A 5-16-73
Sec. 711 54
Sec. 728 (1961) 55
Sec. 1086 5
Sec. 2362 11a-53
Sec. 3386 50
Business & Professional Code, Chap. 3,
Art. 1 49
Health & Safety Code
Sec. 33049 (1959) 58
Sec. 33050 (1961) 62
Sec. 33070 (1961) 63
Probate Code, Sec. 1530, 1534 52
United States Code, Title 42, Sec. 1982 8a
iv
MISCELLANEOUS
Rules On Appeal, Rule 56 2a
Constitution of the State of California
Article I, Sec. 1 64-26-12a
Article I, Sec. 11 68
Article IV, Sec. 1 6a-47
Article XVIII, Sec. 2 64
Article XIX, Sec. 4, 1879 18
National Housing Act of 1934 9a
Sacramento Superior Court Action
No. 147,992 3
Weaver, Robert. The Negro Ghetto.
New York, Harper & Bros. 1948 21
Abrams, Charles. Forbidden Neighbors.
New York, Harper & Bros. , 1955 21
Woofter, T. J. Negro Problem in Cities,
New York, Double day-Doran. 21
Me Entire, Davis. Residence and Race.
Berkeley, University of California Press 21
U. S. Commission on Civil Rights.
Housing, 1961 Report. 21
Page
Report of the Commission on Race and
Housing. Where Shall We Live?
University of California Press, 1958 23
Harris, Robert J. The Quest for Equality.
Baton Rouge, L a ., Louisiana State
University Press, 160, p. 40, 41. 35
Graham, Howard Jay. Our Declaratory
Fourteenth Amendment. 7 Stanford Law
Review 3 (1954) ~ 36
v
MISCELLANEOUS - CONTINUED
Page
Franks John P„ and Munro, Robert F,
The Original Understanding of Equal
Protection of the Laws. 50 Columbia
Law ReviewT53T<[1950)" 36
vi
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
-_ -oO o---
HOWARD G„ LEWIS, )
)
Petitioner, )
)
vs„ )
)
FRANK M„ JORDAN, as Secretary Of )
The State of California, )
)
Respondent, )
)
And )
)
CALIFORNIA COMMITTEE FOR HOME )
PROTECTION; CALIFORNIA REAL )
ESTATE ASSOCIATION; CALIFORNIA )
APARTMENT HOUSE OWNERS )
ASSOCIATION; ROBERT A. OLIN; )
WILLIAM A, WALTERS, LAWRENCE )
H„ WILSON, ROBERT L. SNELL, )
REG, F, DEPUY, DONALD McCLURE, }
)
Real Parties in Interest, )
_____________ ______ _________________________ )
PETITION FOR WRIT OF MANDATE AND
POINTS AND AUTHORITIES IN SUPPORT THEREOF
TO THE HONORABLE CHIEF JUSTICE AND THE
ASSOCIATE JUSTICES OF THE SUPREME COURT
OF THE STATE OF CALIFORNIA:
Petitioner HOWARD G. LEWIS, by this,
his verified petition, seeks a Writ of Mandate
la
commanding the respondent, FRANK M. JORDAN,
as Secretary of State of: the'State of-California, to
refrain from performing any act or duty as such
Secretary of State with respect to placing the herein
after referred to proposed initiative constitutional
amendment on the next general election ballot to be
voted upon by the people, and specifically to omit
said proposal, from said ballot.
In compliance with said subsection (a) of
Rule 56 of the Rules on Appeal, petitioner states that
in his opinion and in the opinion of his counsel the
writ should issue from this Honorable Court for the
following reasons:
(a) The question is one of great import
ance and urgency to all the people of the State of
California in that the contested proposal would effect
fundamental changes in the laws of this state. The
public interest would be served by an early determin
ation of the issues raised herein, and these issues
should be determined by a court of last resort.
(b) The time schedules for placing an
initiative proposal on the ballot are such that it would
not be practical to have the issues raised herein first
determined by a superior court and then on appeal in
2a
this Court, since said measure has qualified for a
place on the ballot at the next general election. The
ensuing campaign to defeat or adopt the contested
proposal will be extremely expensive for each side,
and will inevitably cause strife and division among the
people.
In further support of his petition petitioner
alleges:
I
That plaintiff is a member of an ethnic
group of persons commonly known and referred to as
Negroes; that plaintiff brings this action on behalf of
himself and others similarly situated with respect to
certain acts, practices and customs of defendants
more particularly hereinafter set forth; that there
are several hundreds of thousands of persons in
California belonging to the same ethnic group as
plaintiff, and who have an interest in this action; that
the number of persons constituting the legal class of
persons similarly situated with respect to certain
actions, plans, customs and practices of the real
parties in interest herein as will more particularly
hereinafter appear is so large that it is not practical
to bring all of them before the Court; that petitioner
3a
is willing and able to adequately represent the in
terests of all of said persons* and shall so represent
them.
In addition* plaintiff is a resident* citizen*
elector and taxpayer of the County of Sacramento*
State of California* and has become obligated to pay
and has paid real property taxes to said county within
one year last past.
II
That respondent* FRANK M. JORDAN* is
the duly elected qualified and acting Secretary of
State of the State of California* and is sued herein in
his official capacity.
III
That the real parties in interest herein are
the official sponsors or proponents of a certain pro
posed alleged initiative constitutional amendment
hereinafter referred to in detail. Said real parties
in interest are as follows:
(1) CALIFORNIA REAL ESTATE ASSOCI
ATION* is a California corporation* having individual
and corporate members who are engaged in the bus
iness of selling* renting* leasing, managing and
otherwise dealing in real property. Said real party
4a
in interest has over forty thousand members, and
represents a substantial portion of all the persons
engaged in the real estate business in this state.
(2) The CALIFORNIA APARTMENT HOUSE
OWNERS ASSOCIATION is a California corporation
whose members own and operate a substantial portion
of all the rental residential housing in this state.
(3) The CALIFORNIA COMMITTEE FOR
HOME PROTECTION is an unincorporated association
organized and existing for the sole purpose of sponsor
ing said proposed alleged constitutional amendment.
(4) The other persons named herein as
real parties in interest are sponsors or proponents of
said proposed alleged constitutional amendment,
either as individuals or as representatives of the other
real, parties in interest.
IV
That on or about November 6, 1963, the
real parties in interest herein, acting individually and
jointly as sponsors or proponents thereof, presented
to the Attorney General of the State of California a
request to give a title and summary to a proposed
alleged Initiative constitutional amendment herein
referred to; that a true copy of said request is marked
5a
"Exhibit A" and annexed hereto and made a part
hereof for all purposes; that said request was made
pursuant to the provisions of Section 3501 of the
California Elections Code.
V
That on or about November 7, 1963, the
s aid Attorney General prepared and delivered to the
real parties in interest herein, and to the respondent
an alleged title and summary of said proposal, A
true copy of said title and summary is marked
"Exhibit B" and annexed hereto and made a part
hereof for all purposes; that in preparing and sub
mitting said title and summary the said Attorney
General was acting pursuant to the provisions of
Article IV, Section I of the Constitution of the State
of California,
VI
That the chief purpose of said proposal is
and always has been to nullify certain laws enacted
by the legislature of California to prevent racial and
religious discrimination in the sale, rental and use
of publicly assisted residential housing; (See "Exhibit
C" annexed hereto); that the real parties in interest
did not at any time inform the said Attorney General
6a
what the chief purpose of the proposal is, but as soon
as the said title and summary were prepared and
delivered as required by law, the real parties in
interest themselves prepared a document which they
entitled "Statement of Purposes, " a true copy of
which document is marked "Exhibit D" and annexed
hereto and made a part hereof for all purposes; that
a true copy of the proposal is marked "Exhibit E"
and annexed hereto and made a part hereof for all
purposes.
BII
That the real parties in interest herein
have circulated or caused to be circulated thousands
of petitions throughout the State of California seeking
the signatures of registered voters on said petition
so as to qualify the same for a place on the ballot at
the next general election; that respondent FRANK M,
JORDAN has received from the various clerks of the
several counties in this state certification that over
500, 000 such signatures have been secured, counted
and verified, and respondent fully intends to place
said proposal on the ballot at the next general election
unless restrained by order of this court.
7a
VIII
That in order to place said proposal on
said ballot respondent will be required to spend sub-
stantial sums of public funds and resources for print
ing and other costs.
IX
That said proposal should not be assigned
to a place on said ballot for the reason that the real
parties in interest have not complied with, the pro
cedural requirements specified in the laws of this
state, and for the further reason that said proposal
violates the 14th Amendment to the Constitution of
the United States. In support of these contentions
petitioner further alleges:
(a) That the title and summary as prepared
by the Attorney General of the State of California do
not state the true chief purpose or points of said
proposal as required by Article IV, Section I of the
California Constitution.
(b) That the proposed alleged initiative
constitutional amendment would violate the 14th
Amendment to the United States Constitution and Title
42, Section 1982, United States Code, In that said
proposal purports to confer upon owners of real
8a
property, through and by means of the Constitution of
California, an absolute right to discriminate on the
basis of race, color or religion in the sale and rental
of such property, and purports to deny to petitioner
and the class to which he belongs, the same right to
invoke the authority of the state to guarantee to them,
the right to own and possess real property as is en
joyed by white persons.
(c) That said proposal is contrary to and
in conflict with the provisions of the National Housing
Act of 1934 as amended, the rules, orders and regu
lations promulgated pursuant thereto, including, but
not limited to Executive Order No. 11, 063 issued
November 20, 1962 by the President of the United
States, in that each prohibits racial or religious dis
crimination in residential housing constructed with
federal assistance. The proposed initiative consti
tutional amendment would prohibit state agencies,
including the courts from vindicating the right to
equal treatment guaranteed by the foregoing.
(d) That the proposal embraces more than
one subject, and therefore, violates Article IV
Section I of the California Constitution, in that among
other things:
9a
(1) It embraces the subject of urban
redevelopment in that it would prohibit local agencies
from entering info contracts with the United States
government to undertake to supervise non-discrimin
ation in the use of land sold by such agency.
(2) It covers the subject of estates of
decedents,, incompetent persons and minors, since
under existing law administrators, executors and
guardians are required when selling estate property
to sell to the highest and best bidder, but under said
proposal such would no longer be the case since the
fiduciary, in his absolute discretion, could always
decline to sell to the highest and best bidder.
(3) It covers the law of contracts to
convey and purchase real property in that it would
nullify the power of a state court to order specific
performance of a contract to sell real property, or
to award damages for breach of such contract, be
cause to do so would directly or indirectly abridge
the right of an owner, in his absolute discretion, to
decline to sell Ms property to any particular person.
(4) It embraces the subject of corpor
ation law because under it corporate directors could,
in their absolute discretion, give preference to
10a
themselves in the sale or rental of corporate property.
This would include the right of a savings and loan
association to decline to sell its property to any
person except its officers and directors, at their
absolute discretion.
(5) It embraces the subject of the right
of real estate brokers to resort to the courts to
collect their fees and commissions, since to force any
person to sell his property to a specific prospective
purchaser, or pay a commission to a broker for
failure to do so, would be in effect indirectly abridg
ing the absolute right of the owner to decline to sell
to any person in his absolute discretion.
(6) It embraces the subject of auctions
as set out in Section 2362 of the California Civil Code,
in that the owner and auctioneer could always decline
to sell to the highest bidder.
(e) The proposed alleged initiative con
stitutional amendment is not a single amendment to
the California Constitution as envisioned by Article
IV, Section 1 and 1c thereof, but is rather an attempt
to revise the constitution by the initiative process;
that under the constitution and laws of the State of
California a constitutional revision may only be made
11a
in accordance with the provisions of Article XVIII,
Sections 1 and 2 thereof.
(1) The proposal would repeal Article
I, Section 1 of the California Constitution by nullifying
the provisions thereof which guarantee all persons
the right to acquire and possess property in that
under the proposal no person could secure the aid of
the courts of the state in an effort to vindicate the
right to acquire property.
(2) It would nullify Article 1, Section
11 of the State constitution which requires all laws of
a general nature to have uniform application, in that
the proposal is a general law, but cannot have uniform
application. For example, it cannot apply to federally
assisted housing, all of which is covered by federal
provisions against racial and religious discrimination,
but if constitutional in other respects, would apply
to housing sold under the California Veterans loan
programs and other housing receiving non-federal
public assistance in Its construction or marketing.
It would not apply to non-residential real property of
any kind.
12a
X
That petitioner has no speedy adequate
remedy at law.
WHEREFORE* petitioner prays that a
Writ of Mandate issue from this court to respondent*
FRANK M„ JORDAN* Secretary of State of the State
of California* commanding him to omit the proposed
alleged initiative constitutional amendment from the
ballot at the next California general election* and for
costs of suit herein incurred and for such other and
further relief as to the Court seems just and proper.
NATHANIEL S. COLLEY
LOREN MILLER
I declare under penalty of perjury that I
have read the foregoing and know the contents thereof*
and that said contents are true and correct.
HOWARD G. LEWIS
13a
NATHANIEL S. COLLEY
COLLEY AND McGHEE
1617 10th Street
Sacramento 14, California
LOREN MILLER
MILLER AND MALONE
2824 So. Western Avenue
Los Angeles, California
Attorneys for Plaintiff
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
- “ -oOo= —
HOWARD G. LEWIS, )
)
Petitioner, )
)
vs. )
)
FRANK M. JORDAN, As Secretary )
Of State Of The State of California, )
)
Respondent, )
and )
)
CALIFORNIA COMMITTEE FOR HOME
PROTECTION; CALIFORNIA REAL )
ESTATE ASSOCIATION; CALIFORNIA )
APARTMENT HOUSE OWNERS )
ASSOCIATION; ROBERT A. OLIN; )
WILLIAM A. WALTERS, LAWRENCE )
H. WILSON, ROBERT L. SNELL, )
REG F. DEPUY, )
)
Real Parties In Interest. )
)
NATHANIEL S. COLLEY
COLLEY AND McGHEE
1617 10th Street
Sacramento 14, California
Attorneys
LOREN MILLER
MILLER AND MALONE
2824 So, Western Avenue
Los Angeles, California
PetitionersFor
- I -
POINTS AND AUTHORITIES
INTRODUC TION
By this proceeding petitioner seeks to have
this court issue Its Writ of Mandate to respondent,
FRANK M. JORDAN, Secretary of the State of Cali
fornia, compelling him to omit from the ballot at the
next general election a proposed alleged Initiative
constitutional amendment sponsored by the real
parties In interest. A true copy of the proposal is
set out herein as "Exhibit E" and annexed to the fore
going petition.
The proponents have secured over 500, 000
valid signatures of voters to their petitions to place
the measure on the ballot, and the respondent has
announced that the measure has qualified for a place
on the ballot at the next general election.
Petitioner contends that the proposal is
invalid on the following grounds:
(1) It does not meet the procedural
requirements set out by law for an initiative consti
tutional amendment.
(2) It violates the California constitu
tional requirement that an initiative constitutional
- 2 -
amendment may not relate to more than one subject.
(3) It violates the California Constitution
in that it attempts to revise that document by the
initiative process, rather than merely amending it.
(4) It is unconstitutional in that it
violates the equal protection and due process clauses
of the 14th Amendment to the "United States Constitu
tion and Title 18 United States Code, Section 1982.
JURISDIC TION
Petitioner seeks to invoke the original
jurisdiction of this Court pursuant to Rule 56(a),
Rules on Appeal. The relief here sought could not be
secured in a lower court for the reason that the time
for performance of the official acts by respondent
sought to be prohibited is so short that there would
be no time for the losing side to seek final review by
this Court. In fact, heretofore, petitioner sought
unsuccessfully to block the certification of signatures
by the county clerks to respondent, and appealed to
this Court from the adverse ruling of the trial court.
(Sacramento County Superior Court Action No. 147,
992 HOWARD G. LEWIS -vs- SACRAMENTO COM
MITTEE FOR HOME PROTECTION, ET AL). By the
time briefs are filed in that action and the case heard
-3-
by this Court the issues will be moot.
There is ample precedent for bringing this
original action for a writ of mandate. In fact, it
would appear that this is the settled way to handle the
matter.
McFADDEN vs. JORDAN
32 Cal 2d 330
PERRY vs. JORDAN
34 Cal. 2d 87
In each of the above cases an original action
was brought against the Secretary of State to compel
him to omit an initiative measure from the ballot.
This is a classic example of the type of
case in which only this court can grant meaningful
relief.
THE P A R T I E S
Petitioner alleges that he is a Negro citizen
who seeks relief for himself and other members of
the ethnic group to which he belongs. Class actions
are specifically provided for by Section 3 82, California
Code of Civil Procedure. The courts have consistently
held that Negroes constitute a class as contemplated
by the statute. BANKS vs. HOUSING AUTHORITY OF
SAN FRANCISCO, 122 Cal App 2d 1. Petitioner claims
that he and the class he seeks to represent stand to be
-4-
irreparably harmed if the proposed initiative con
stitutional amendment is adopted,,
Petitioner also seeks to assert his right as
a taxpayer to prohibit illegal expenditure of public
funds, Sec. 526A CCP. It is his claim that the pro
posed initiative constitutional amendment is invalid
due to procedural defects and further, that it is un
constitutional in substance. The right of a taxpayer
to prohibit the expenditure of public funds in an un
constitutional activity was recognized in WIRIN vs,
PARKER, 48 Cal 2d 890.
R E L I E F SOUG HT
Mandate is the proper remedy where a
citizen desires to compel the Secretary of State to
omit a proposal from the ballot. McFADDEN vs.
JORDAN, 32 Cal. 2d. 330. Here petitioner has no
other speedy or adequate remedy at law, and it was
exactly this situation that the writ of mandate was
designed to cure. Section 1086 CCP.
-5 -
ARGUMENT
THE PROPOSED INITIATIVE CONSTITUTIONAL
AMENDMENT IS INVALID BECAUSE THE SUMMARY
AND TITLE PREPARED BY THE ATTORNEY
GENERAL ARE FATALLY DEFECTIVE.
The provisions of Article IV, Section 1 of
the California Constitution require that, prior to cir
culating petitions to qualify an initiative constitutional
amendment for a vote by the people, the proponents
must request that a summary and title be given to it
by the Attorney General. This summary and title
must appear on the face of each sheet which bears the
signature of voters. The clear purpose of this re
quirement is to prevent voters from being misled into
signing a petition involving a measure they oppose or do
not understand. The theory is that every voter should
know what he is signing, and he must be able to as
certain this from the title and summary.
So far as we know, the proponents of this
measure submitted their proposal to the Attorney
General without explanation. We have attached a copy
of the proposal to our petition and marked it "Exhibit
E. " We have also annexed the title and summary as
"Exhibit B. "
-6 -
The principal sponsor of the proposal is the
CALIFORNIA REAL ESTATE ASSOCIATION. The
editorial taken from the December 1963 issue of its
official publication clearly shows that the purpose of
the initiative is to nullify the Rumford Fair Housing
Act. We have annexed that editorial as "Exhibit C. "
In another pamphlet the real parties in interest state
their purpose to be that of nullifying the Rumford Act.
See "Exhibit F. " This is the sole purpose voiced by
the proponents. The summary, however, which must
by law state the chief purpose of the proposal, makes
no reference whatsoever to the Rumford Act. It
merely states that the proposal prohibits the state or
any agency thereof from denying, limiting or abridg
ing the right of any person to refuse to sell or lease
his residential real property to any person as in his
absolute discretion he sees fit. We contend that the
chief purpose of the proposal is not to prohibit the
state, including the courts, from interfering with the
claimed absolute right to decline to sell or lease real
property. The chief purpose, as stated by the real
parties in interest over and over again is to repeal
the Rumford Act and similar laws. The proposal
may have another purpose, but thus far no one has
-7 -
asserted it. For this reason, it is apparent that the
summary and title do not state the chief purpose and
is therefore legally insufficient.
We are not unmindful of the rule of liberal
construction of such proposals announced in GAGE
vs. JORDAN, 23 Cal. 2d 794. There, however, it
was stated by the court that the interpretation adopted
by the court must be reasonable, and the interpreta
tion intended by the framers must be adopted. In the
case at bar the proponents of the proposal have revealed
to us that its chief purpose is to repeal the Rumford
Fair Housing Act and similar laws. We concede
that by use of the referendum they have a right to
accomplish that purpose, but here, for all the average
voter knows from the official title and summary, the
chief purpose of the proposal is to abolish the law
against restraints on alienation, prohibit local re
development agencies from accepting federal grants,
nullify the right of a realtor to enforce in court his
right to a commission when he secures a purchaser
ready, willing and able to meet the terms of the seller,
free savings and loan associations to deal with their
own officers and directors, or eliminate that portion
of Article I, Section 1, of the California Constitution
- 8 -
which now guarantees to every citizen the right to
acquire real property.
We contend that if the purpose of the title
and summary is to inform the electorate what is being
voted upon* the one here submitted fails to do this
and is therefore invalid.
The functions of the Attorney General in
titling a measure are said to be ministerial. With
this we agree, and it is for this reason that the pro
ponents should inform him of their chief purpose.
Unless he is so informed he must either guess as to
the chief purpose or deduce it from the language of
the proposal as submitted. We submit that he may
well have analyzed the language of the proposal and
determined the legal effect it would have if enacted,
but he could only know the chief purpose the: proponents
had in mind by them telling him. He could deduce
what the proposal would do if enacted, but he could
never deduce what the proponents had in mind. We
further submit that whatever was the main thing the
proponents had in mind in proposing the initiative is
its chief purpose, and the various legal results which
would flow from it are its points. As we have indicated,
not only does the title and summary prepared by the
-9-
Attorney General net disclose the chief purpose, but
further, it dees not disclose the points of the proposal.
It is our contention that the legal consequences of the
proposal are the points referred to in the constitution.
A. proper summary need not be a catalog of all its
points, but at least the major ones should be-listed.
Hereinafter we discuss some of the various points
covered by the proposal. If the title and summary do
not give the required information the initiative is in
valid. Clark, vs, Jordan, 7 Cal. 2d 248.; Boyd vs.
Jordan, 1 Cal. 2d 46 8.
Another reason the constitution requires
that the chief purpose of the proposal be indicated by
the Attorney General is so that it may be objectively
and impartially stated for every voter to see before
he signs the petition. In the instant case, however,
the real parties in interest prepared their own state
ment of purpose (See "Exhibit D") and presented it to
each voter as an explanation of what he was being
asked to sign. That statement asserts that the pro
posal would "restore" to the property owners the right
to rent or sell their property to persons of their
choosing, and claims that the ’"constitutional right"
to do this has been partially taken away by recent
-10-
legislation. This statement is both false and mis
leading and calculated to frighten people into signing
the petition. If the asserted right is already "con
stitutionally guaranteed* " the legislature could not
take it away. Further, there would be no need to
revise the constitution to protect a right already
"constitutionally guaranteed. "
The statement of purpose is but a disguised
appeal to racial prejudice, because the only part of
the right to decline to sell or rent real property
abriged by "recently enacted laws" is that based on
race, color, creed or religion. Thus the proponents
lay bare the motive and purpose of their scheme.
They seek to write into the constitution of this state
an asserted "constitutionally guaranteed right" to
discriminate on the basis of ethnic identity in the sale
and rental of real property.
Their statement of purpose is so fundamen
tally different from the title and summary prepared by
the Attorney General that the two appear to relate to
different proposals. The statutory and constitutional
scheme for placing an initiative constitutional amend
ment upon, the ballot does not contemplate or permit
privately prepared statements of purpose for use as
-11-
an inducement for the securing of signatures. Such
practice, here uniformly followed by the real parties
in interests invalidates all the signatures secured by
them and the proposal itself. Boyd vs. Jordan, 1 Cal.
2d 468. It may not be too strongly stressed that the
reason for having the title and summary of points and
chief purpose prepared by a high officer of the State
is "to protect the electorate from imposition. "
Epperson vs. Jordan, 12 Cal. 2d 61
THE PROPOSAL WOULD VIOLATE THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITU
TION
In the case of Abstract Investment Company
vs. Hutchinson, 204 Cal, App. 2d 255 (1962), it was
held that under the mandate of the Fourteenth Amend
ment to the U. S. Constitution a state court must
entertain the asserted defense of racial discrimination
in an unlawful detainer action. In that case, the owner
served the regular statutory notice to quit upon his
Negro tenant, who, in the eviction action which followed,
defended upon the ground that the sole basis of Ms
attempted eviction was the fact of his race or color.
The trial court would not accept the offer of proof
made in support of the affirmative defense and the
-12-
District Court of Appeal reversed on the theory that
refusal to allow the defense would render the Writ of
Restitution unlawful state action.
The adoption of the proposed initiative
constitutional amendment purporting to give the owner
of real property unbridled discretion to lease or- not
lease his property is invalid because it attempts to
take from a Negro lessee such as Hutchinson his right
given under the Fourteenth Amendment to resist an
eviction by asserting in the state courts that the sole
basis of the action of the landlord is race or color.
It is utterly impossible to reconcile the
absolute discretion given under the proposal with the
equal protection clause of the Fourteenth Amendment
as interpreted in Abstract Investment Company vs.
Hutchinson* supra. Thus* the proposed initiative
constitutional amendment* if enacted* would be a
nullity whenever a Negro asserted the Fourteenth
Amendment as a fefense when involved in a land trans
action with a white person. The mere assertion of
the defense* even without proof* would restrict or
abridge the absolute discretion of the owner* and a
discretion thus restricted or put to proof is no
longer absolute.
-13 -
As was said in Sterling vs. Constantin, 287
U. S. 3 89, "There is no avenue of escape from the
paramount authority of the Federal. Constitution. "
The uniform rule is that the supremacy clause of the
U. S. Constitution prohibits a state court from re
fusing to enforce a federally protected right. Cooper
vs. Aaron, 358 U. S. 1; Public Utilities Commission
vs. U. S. , 355 U. S. 534; Testa vs. Katt, 330 U. S.
386.
The proposal purports to confer upon the
owner of real property the right to sell it or decline
to sell it at his absolute discretion. Under existing
law, an "absolute" owner of property has an "absolute"
right to use, lease, sell or decline to lease or sell,
subject only to general laws. One such general law
abridging that absolute right is the Rumford Fair
Housing Act. Another is the Unruh Civil Rights Act.
The proposal now under attack by plaintiff purports
to remove the existing restriction requiring that the
use be subject to general laws. Thus it is clear that
by this initiative amendment the State of California
would be conferring upon private persons an absolute
right to discriminate against persons because of race
or color in the use of real property. In a legal, sense,
-14 -
it is quite elementary that the thrust of the prohibition
contained in the Fourteenth Amendment was aimed at
just such state schemes of racial discrimination. If
the state itself, in all its majestic sovereignty, can
not itself discriminate, it is not a crass exhibition of
"absolute'’ simplemindedness for anyone to claim,
that the state could nevertheless erect a constitution
ally sheltered arena in which private persons may so
discriminate in their "absolute" discretion? Both
common sense and uniform case law suggests a
negative answer. Williams vs. Howard Johnson, et
ah, 268 Fed. 845; Lombard vs. Louisiana, 10 L. Ed.
2d 338. See also: Nixon vs. Condon, 286, U. S. 73;
Smith vs. Allenright, 321 U. S. 649; Terry vs. Adams,
345, U.S. 461.
As was said in Railway Mail Association vs.
Corsi, 326 U. S. 88, the purpose of the Fourteenth
Amendment was to prevent the states from doing
anything which would "perpetuate discrimination on
the basis of race or color. " 93-94.
It is often said that such a proposal as is
here considered is saved from unconstitutionality
because under it Negroes may discriminate against
white people, and the law merely gives members of
-15-
each group an equal right to discriminate. This
argument fails to comprehend the nature of constitu
tional rights under our system of government. Rights
belong to the individual, and they are never vindicated
by merely showing that others of a group to which he
belongs have not been harmed, or that he or Ms group
may also discriminate. Buchanan vs. War ley, 245
U. S. 60; Goss vs. Board of Education, 10 L. Ed
636. No group has any constitutionally protected right
to equal protection of the laws, but every individual
does.
If, as we have demonstrated, the proposed
initiative constitutional amendment violates the
Fourteenth Amendment, it is a waste of the taxpayers'
funds to require the respondent to print it and place
it on the ballot. We do not know at this time how much
in public funds will be spent in this endeavor, but not
one cent of public money should be wasted, and the law
is clear that any taxpayer may enjoin the unlawful
expenditure of public funds, regardless of amount.
California Code of Civil. Procedure, Section 526a;
Wirin vs. Parker, 48 Cal. 2d 890. In the Wirin case
the Chief of Police of Los Angeles County was held to
be subject to an injunction by a taxpayer if he continued
- 1 6 -
to spend public funds for the invasion of the privacy of
citizens. It was there pointed out that the test is not
the amount of public funds to be wasted but rather
whether the expenditure was for an unlawful purpose.
The federal constitutional issues may be
summarized as follows:
1. May the people of the State of
California, consistent with the requirements
and inhibitions of the Fourteenth Amend
ment, enact a constitutional provision to
sanction the racially discriminatory
customs of private individuals in the sale
or rental of real property?
2. May the people of the State of
California by the enactment of a constitu
tional provision restrict the purpose and
scope of a Federal statute which by its
terms provides that "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 per
sonal property" (48 USCA 1982)?
The consideration of these constitutional
-1 7 -
issues requires an understanding of background social
issues and prior legal attempts te cope with them.
Discrimination against Negroes in the sale
and rental of real property is of long standing and is
rooted in our history. If is a heritage of slavery and
of permissible discriminations against free Negroes
during that period. The first attempt to deal with the
problem came in 1866 with the passage of what is now
42 USCA 1982. That statute was aimed at wholesale
discrimination against Negro ownership,, use and
occupancy of real property and its restraints were
fairly effective until large scale non-white occupancy
of urban land created a popular demand for residential
segregation. The first attempt to impose racial
residential segregation was made in San Francisco
and was directed against Chinese. San Francisco
claimed the power to impose residential segregation
under the since-repealed provisions of the California
Constitution which vested cities with the right to ex
clude Chinese from their boundaries or to segregate
them within their limits (Article XIX, Section 4, 1879,
.Cĝ ifornia Constitution). The ordinance was held in
valid on the ground that it contravened the equal pro
tection of the law requirements of the Fourteenth
-18-
Amendment. In re Lee Sing, 43 Fed. 359 (1890)
As Negro migration to the cities grew in
volume in the early years of the Twentieth Century,
southern and border cities attempted to segregate
Negroes through city ordinances. Such racial zoning
ordinances were held invalid by the United States
Supreme Court in 1917. Buchanan v, Worley, 245
U. S. 60; City of Birmingham v. Monk, 185 Fed. 2d
859.
Invalidation of racial zoning ordinances
encouraged resort to judicial enforcement of racial
restrictive covenants which had originally been held
judicially unenforcible in a California case. Grandolfo
v. Hartman, 59 Fed. 181 (1892). California approved
judicial enforcement of racial restrictive covenants
in 1919. L. A. Investment Company v, Gary, 181 Cal.
680. Thereafter, California continued to enforce
racial covenants through judicial decree until the
United States Supr erne Court interdicted such enforce
ment in 1948. Shelley v. Kraemer, 334 U. S. 1;
Cummings v. HoR.r, 31 Cal. 2d 844. After interdiction
°f judicial enforcement, signatories to such covenants
sought indirect enforcement through the filing of dam-
age suits against other signatories who had sold
-19 -
restricted property to a member of the proscribed
group. California held in 1952 that a levy of damages
for sale of racially restricted property was beyond
the competence of the Courts. Barrows v. Jackson,
112 Cal. App. 2d 464. The California holding was
approved by the United States Supreme Court in 1953.
Barrows v. Jackson, 346 U. S. 249.
Meanwhile, the federal government had
entered the housing field in the early 1930's and fed
eral housing agencies tolerated discrimination in
occupancy of publicly owned housing operated by local
housing agencies, a practice that was forbidden by
California courts in 1953. Banks v« San Francisco,
122 Cal. App. 2d 1; Cert Den. 347 U. S. 974.
Federal Housing Administration required imposition
of racial covenants as a condition for extension of
mortgage loan insurance from 1934 until 1947 when it
withdrew the requirement, but it continued to permit
builders and subdividers to discriminate in the sale
and rental of such housing until the issuance of a
presidential executive order, No. 11, 063 on November
20, 1962. That order prohibited, discrimination in the
sale or rental of publicly owned and publicly assisted
housing or housing constructed under urban renewal.
-20 -
or urban redevelopment plans.
California courts had cast doubt on the
exercise of discrimination in the sale and rental of
FHA housing in a decision by the Sacramento Superior
Court, Ming v. Horgan, No. 97130.
As early as 1913 a Congressional report
called attention to the rapid growth of Negro ghettoes
in cities. The growth of such ghettoes proceeded
apace with large scale Negro immigration during and
after World War I and World War II.
Weaver, Robert. The Negro Ghetto.
New York, Harper & Bros. 1948
Abrams, Charles. Forbidden Neighbors.
New York, Harper & Bros., 1955.
Woofter, T. J. Negro Problem in Cities.
New York, Doubleday-Doran..
The scope and extent of residential segre
gation and its effects are explored in detail in a
number of studies:
McEntire, Davis. Residence and Race.
Berkeley, University of California
Press
U. S. Commission on Civil Rights.
Housing, 1961 Report.
There can be no doubt that governmental
sanction and support of residential segregation through
racial zoning ordinances, judicial enforcement of
-21-
racial restrictive covenants and the practices of
federal housing agencies was responsive to a certain
popular demand, but long continued exertion of state
power to that end undoubtedly exacerbated discrimin
atory customs and practices in the housing market.
The practices of the market place became almost
wholly discriminatory, enforced by policies of real
estate brokers who determined where home sales and
rentals would be made to Negroes and of lending in
stitutions which determined where they would make
loans to Negroes for home purchases. Although the
primary motivation for these restraints on Negro
residences rests on segregatory beliefs and desires,
the effects of residential segregation are onerous in
many other respects. In practice, the Negro was ex
cluded from the open housing market by the interplay
of custom and the exertion of state power and, as a
consequence, was crowded into a seller's market
where he was compelled to pay premium prices for
goods and services. The Negro's long continued ex
clusion from the low down payment, low interest rate
features of the FHA and VA housing market levied a
tremendous economic toll since the Negro was forced
to buy or rent shelter in the conventional market where
-22-
down payments and interest rates were higher and
where he was often compelled to resort to the second
mortgage market with its even higher interest rates.
Removal of governmental supports did not lead to
overnight collapse of customary restrictions and dis
criminations which still persist to exclude the Negro
from the open housing market.
Report of the Commission on Race and
Housing. Where Shall We 'Live?
University of California Press. 1958.
In an attempt to deal with the untoward re
sults of residential segregation* a number of cities
and nine states led by New York have enacted fair
housing laws affecting privately owned housing and
ordinances in the past decade. California enacted
such legislation in 1959 in the form of the Unruh Civil
Rights Act and the Hawkins Fair Housing Act. The
latest California enactment is the Rumford Fair Hous-
mg Law. In essence* these laws are restraints against
discrimination in the sale and rental of urban property.
They have been universally upheld. Burk v. Poppy
Construction C o .. 57 Cal. 2d 463. The constitution
ality of such legislation derives from the fact that it is
enacted, in aid of the equalitarian command and purpose
of the Fourteenth Amendment. Corsi v. Mail Handlers
-23 -
Union, 326 U, S. 88. California Courts have also
approved such legislation because it accords with
state public policy and with what California courts
construe as national public policy. Burke v. Poppy,
supra: James v. Mar inship, 25 Cal. 2d 721.
Proponents of the initiative seek sanctuary
for their discriminatory purpose by resorting to a
claim of unbridled "right" to select tenants or buyers
on racial grounds by equating that claimed "right" to
the ordinary freedom of the property owner to choose
between competing buyers or renters. Concealed
within that ingenious claim is the concept that there
is a constitutionally protected right to discriminate
on racial grounds, of equal dignify with the right of
the citizen to be free from racial discrimination --
a claim derived from a misapprehension of the scope
of the holding in the Civil Rights cases which are
commonly supposed to have held that the Fourteenth
Amendment protects the individual's privilege to dis
criminate for racial reasons at his own whim and
caprice. The Civil Rights Cases did not impute that
meaning to the Amendment; what they did hold is that
the Amendment imposes no direct restraint on dis
crimination by the individual, as such, and that
-24-
individual discrimination, no matter how morally
reprehensible, which is not sanctioned or supported
by the state is not inhibited by the text of the Four
teenth Amendment. That concept is ultimately ex
pressed in the statement that the "Amendment erects
no shield against merely private conduct, however
discriminatory or wrongful, " Civil Rights Cases,
109 U. S. 3; U. S. vs. Harris, 106 U. S. 629.
Obviously, an initiative measure is state
action as that term is used to measure conduct by the
yardstick of the Fourteenth Amendment. It is true
that the proposed measure carefully skirts the use of
language that would reveal its racial bias and thrust.
But unless that meaning is read into it, the proposal
is a sterile exercise in semantics since it would then
only confirm a right - - that of free alienation or
rental of real property - - existent without the necessity
of further constitutional sanction. That right is
presently protected by the very first section of the
very first article of the California Constitution.
All men are by nature free and independ
ent, and have certain inalienable rights,
among which are those of enjoying and de
fending life and liberty; acquiring, possessing
-25-
and protecting property; and preserving
and obtaining safety and happiness.
California Constitution, Article I, Section 1.
The right of "acquiring, possessing and
protecting property" is anchored in the first
section of the first article of our Consti
tution. This right is as old as Magna
Charta. It lies at the foundation of our
constitutional government, and "is neces
sary to the existence of civil liberties and
free institutions. " (Billings v. Hall, 7
Cal. 1, 6). Miller v. McKenna, 23 Cal.
2d, 774, 783.
The property owner now has a right to
choose a buyer or renter on rational grounds - - all that
the Rumford Law does is to bid him be color blind in
the exercise of that right and to select the best quali
fied bidder. Once its discriminatory intent is isolated
and abstracted, the proposed initiative is mere sur
plusage which neither adds to nor detracts from present
constitutional rights. Its passage would be a vain and
idle act unless its proponents had more in mind than
what appears on the surface. They do have more.
What the initiative would sanction and support and
-26-
cover by a shield of state law and state authority and
vest in the property owner is legal sanction to use
race as a touchstone in making his choice of a buyer
or renter. It is the precise exercise of state sanction
or support to shield that racially discriminatory in
tent and legitimize the custom of using race as a
determinant factor in the sale and rental of real pro
perty that condemns the initiative. It emerges as a
naked and shameless attempt to use state power to
disadvantage the prospective Negro home buyer and
impair a right "as old as Magna Charta. "
The right to acquire, enjoy, own and dis
pose of real property is a civil right of the highest
order.
It cannot be doubted that among the civil
rights intended to be protected from dis
criminatory 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 the
/Four tee rid:’/" Amendment as an essential
precondition to the exercise of other basic
civil rights and liberties which the Amendment
-27-
was intended to guarantee. Shelley v.
Kraemer, 334 U. S. 1.
If the proponents of the initiative had ex
pressed their intent in direct words without resort to
subterfuge and evasive language and now proposed a
measure saying directly that "all persons may refuse
to sell;, rent or dispose of real property on racial
grounds or for racial reasons, " there would be no
doubt that such a law was offensive to the Fourteenth
Amendment. It is no less offensive because its pur
pose is entangled in a thicket of verbiage. The sit
uation Is akin to the attempt to disfranchise Negroes
through the use of the so-called Grandfather Clauses
which Isolated and discriminated against Negro voters
by identifying them as member of a class whose grand
fathers were subject to discrimination and by then
visiting the same disability on them. The Supreme
Court condemned such evasive attempts.
The exemption from the literacy test
prescribed by the 1910 Amendment to
Oklahoma Constitution . . . as a condition
to vote, which that Amendment makes in
favor of persons who, on January 1, 1866,
or at any time prior thereto, were entitled
-28-
to vote under any form of government,
or who at that time resided in some foreign
nation, and are lineal descendants is a
denial or abridgement of the right to vote
on account of race, color or previous con
dition of servitude, contrary to U. S.
Constitution, Fifteenth Amendment, as it
creates a standard which, as a necessary
result re-creates and perpetuates the con
ditions which the Fifteenth Amendment was
designed to destroy. Gwinn v. The U, S .,
238, U. S. 347; Meyers v. Anderson, 238
U. S. 369.
So here the proposed initiative proposes to
re-create and perpetuate in law the very discrimin
ation which the Fourteenth Amendment was designed
to destroy.
The fact that the discrimination sought to
be worked here is sophisticated and concealed cannot
save it.
The Constitution condemns sophisticated
as well as simple-minded modes of discrim
ination. Lane v. Wilson, 307 U. S. 268,
In Lane, just cited, the Oklahoma legislature
-29-
sought to escape the stricture of the Grandfather
Clause cases by enacting a restrictive measure, in
effect, requiring Negroes to register within a twelve-
day period. There was no racial reference in the
statute but the Court isolated it just as the discrim
inatory purpose and intent must be singled out here.
That device was held invalid. Lane v. Wilson, supra.
The so-called White Primary cases also
teach us that the attempt to vest in citizens a dis
criminatory privilege by the enactment of state law
does not immunize it against constitutional attack.
Where the state gave political parties the express
privilege of excluding Negroes from primary elections,
that law was stricken down. Nixon v. Condon, 286
U. S. 73.
When that express grant was found offensive,
the state then reposed in the political party the carte
blanche right to make its own rules without any
mention of race, The Democratic party promptly
barred Negroes purporting to act as a private group.
The Court looked behind the words, isolated the of
fensive purpose of the statute and struck down the law.
Smith v„ Allwright, 321 U. S. 649.
Proponents may answer that the discriminatory
-30-
"right" vouchasfed by the initiative is vested in
Negroes as well as white persons and that there is
thus no inequality as between Negro and white persons,
Negroes they may say are as free to discriminate
against white persons as whites against Negroes.
That same argument was made in the covenant cases.
The Court answered that the guarantee of equal pro
tection is not satisfied by the indiscriminate imposition
of inequalities. Shelley v. Kraemer, 334 U. S. 1.
The short of the matter is that the Four
teenth Amendment proscribes all assertion of state
power in aid of discrimination.
In the Civil Rights cases . . . this
Court pointed out that the Amendment makes
void "state action of every kind" which is
inconsistent with the guarantees therein
contained and extends to manifestations of
state authority in the shape of laws, customs
or judicial or executive proceedings.
Language of like effect is employed no
less than eighteen times during the course
of that opinion. (Emphasis added). Shelley
v, Kraemer,, 334 U. S. 1,
Among the phrases appearing in the Civil
-3 1 -
Rights Cases are the following: "The oper
ation of state laws and the action of state
officers, executive or judicial;" "State laws
and state proceedings;" "state law. . . or
some state action through its officers or
agents;" "state laws or acts done under state
authority;' "state laws or state action of
some kind;" "Such laws or state action of
some kind;" "State legislation or action;"
"State law or state authority." Shelley vs.
Kraemer, 334 U. S. 1 (Footnote).
The consideration of the issues presented
here requires a review of the historic reasons that led
to adoption of the Fourteenth Amendment. No matter
what other purpose it comprehended, the primary
purpose of the Fourteenth Amendment was the pre
servation and protection of civil rights to Negroes.
The Fourteenth Amendment declares that "all persons
whether colored or white shall stand equal before the
laws of the states, and in regard to the colored race
for whose protection the Amendment is primarily
designed, that no discrimination shall be made against
them by law because of their color. " Strauder v.
West Virginia, 100 U. S. 303, 307.
-32-
The impact of the Fourteenth Amendment
falls primarily where the issue of racial discrimin
ation is involved.
The majestic generalities of the Four
teenth Amendment are thus reduced to a
concrete statutory command when cases
involve race or color which is wanting in
every other kind of alleged discrimination.
Fay vc New York, 332 U. S. 261, 2 82.
Civil rights do not exist in a social, econ
omic or political vacuum. They are rights to safe
guard the citizen, in his relationship to the society
in which he lives and functions. No man is free in a
free enterprise economy unless he has access to the
free market, especially in the purchase or rental of
such a vital commodity as urban housing. The matter
was well put by Albert Cole, then Administrator of
the Housing and Home Finance Agency, in 1954 when
he said:
The Negro is still not a free man in his
own home. Too often he must live where
he is compelled to live. He lives in tightly
contained, less desirable parts of our
cities. He is denied the opportunity . . .
-3 3 -
of freely bargaining for and acquiring a
home suited to his needs . . . It would be
the grossest self deception for us to think
that we have given the Negro his freedom
so long as he Is not free to acquire one of
the free man's most cherished possessions
- - his own home.
Mr. Cole's remarks were directed against the complex
of discriminatory customs,, practices and usages of
the housing market - - the very complex the initiative
would codify into the supreme law of this state. The
fact that this complex has long persisted does not vest
in its supporters the prerogative of calling on the state
to shield it by the exertion of state power.
The Constitution confers on no individual
the right to demand action by the State which
results in the denial of equal protection of
the law to other individuals. Shelley v.
Kraemer, supra.
The framers of the Fourteenth Amendment - -
the Great Charter of Civil Rights — were correct in
their estimates that equality in the enjoyment of property
18 an indispensable prerequisite to the exercise of
other basic civil rights. California cannot impair that
- 3 4 -
e q u a l i t y within the contours of the Fourteenth Amend
ment.
The initiative stands condemned by the
Fourteenth Amendment on quite another plane when
the purposes of the Amendment are understood and
applied. The Amendment was proposed to remove all
doubts as to the validity of the original Civil Rights
Act of 1866, enacted prior to its passage. Two con
siderations moved Congress: first, the fear that
some future Congress might repeal the provisions of
the Civil Rights Act and, secondly, gnawing doubts
as to the constitutionality of the measure as predicated
on the Thirteenth Amendment. Both issues could be
resolved by the addition of the Fourteenth Amendment.
Harris, Robert J. The Quest for Equality.
Baton Rouge, La. ^Louisiana State
University Press, 160, p. 40, 41.
The framers of the Amendment were believers
in the doctrine of the Social Compact. As such they
subscribed to the belief that the Compact was double
edged: The citizen owed allegiance to the State; the
State owed protection to the citizen. Equal protection
as that phrase was ultimately written Into the Four
teenth Amendment comprehended a state of affairs in
which the State must not only safeguard the citizen
-35-
from the impact of unequal laws but must exert its
full authority to afford the citizen absolute equality
with every other citizen.
Graham, Howard Jay. Our Declaratory
Fourteenth Amendment. 7 Stanford
Law Review 3 (1954)
Franks John P. and Munro, Robert F.
The Original Understanding of Equal
Protection of the Laws. 50 Columbia
Law Review 153 (1950]
The allegiance and protection concept has
had little attention in cases considering the Amend
ment but it did receive Supreme Court mention and
direct approval in one instance by Chief Justice Waite.
"Allegiance and protection are, in this
connection, reciprocal obligations. The
one is compensation for the other; allegi
ance for protection and protection for
allegiance. " Minor v. Happerstett, 21
Wall, 162, 165-166.
The Fourteenth Amendment provides that
no state shall deny "to any person within its juris
diction the equal protection of the laws. " The plain
import of that language is that the state must not only
enact discriminatory legislation but that it must
exercise its vigilance to see to it that equality before
-36-
the law is provided for all citizens. Equal protection
of the law meant equality before the law.
The Supreme Court adopted and expanded
on that concept in some of the earliest cases that
came before it.
"The words of the Amendments it is
true* are prohibitory, but they contain the
necessary implication of a positive im
munity, or right, most valuable to the
colored race ■— the right to exemption
from unfriendly legislation against them
distinctively as colored; exemption from
legal discriminations, implying inferiority
in civil society, lessening the security of
their enjoyment of the rights which others
enjoy, and discriminations which are steps
towards reducing them to the condition of
a subject race. (Emphasis added).
Strauder v. West Virginia, 100 U.S. 303.
The command of the State is not always to
be found in what it enacts as positive law; its very
inaction may import state sanction or support in com
plex political or economic affairs. What the State
tolerates, the State commands in respect of complex
- 37 -
political and economic affairs. Thus, when South
Carolina repealed all election laws in an effort to
preserve the White Primary, the Fourth Circuit
Court of Appeals looked through the fiction and found
state action in the conduct of the Democratic party
in enforcing the customary ban on Negro participation
in the party's primary elections. Rice v, Elmore,
165 Fed. 2d 387, Cert. Den. 333 U. S. 875.
In the case of the Jaybird Democratic
Association, the Supreme Court found state action
in the situation where the Association, a private
group of white persons acting in the absence of state
law, dominated nominations in Democratic party
primary elections by pre-primary endorsements.
Failure of the state to take action to afford Negroes
a chance to express their will was found to be state
action. Terry v. Adams, 345 U. S. 461.
So here, where the proposed initiative in
effect repeals a state law (the Rumford Act) and
seeks to revitalize discriminatory practices and
customs that obtained prior to the passage of the law,
thb state, would act as effectively as if it had originally
established those discriminatory practices and
customs as law through legislative enactment.
-38-
California cannot put its imprimatur on
those customs by clothing them with constitutional
sanction* for what the initiative seeks to do is to
lessen the security of the enjoyment of rights which
white persons enjoy. That absolute equality before
the law which is commanded by the equal protection
clause would be diminished. Proponents of the in
itiative* we must remark again* are not seeking to
vindicate the existent and always protected right of
the property owner to freely alienate or rent his
property but to lodge in the property owner* and
cover with the mantle of state sanction* the privilege
of discriminating in the sale and rental of real
property.
We do not need to expand the concept that
the state owes complete protection against all dis
criminatory customs to its logical limit in order to
satisfy the requirement of equal protection although
that concept is certainly imbedded in the Fourteenth
Amendment. What we do say here is that at a very
minimum the state may not* through the device of
prohibitory language in a constitutional amendment,
confer on private individuals a privilege of discrim
ination based on racial considerations through legal
- 3 9 -
support of discriminatory customs. To take such
action would be to lessen the Negro's "security of
their rights which others enjoy. " Strauder v. West
Virginia, supra.
Thus, state action was found present, and
was condemned, where the state attempted to extend
to white signatories of a racial covenant a right to
secure damages against other white signatories who
sold the restricted property to members of the
proscribed group although the Negro buyer was not
a party to the suit and was in peaceable possession
of the real property and Ms possession could not be
disturbed. Barrows v, Jackson, 346, U. S. 249.
One of the certain purposes of the Four-
teentfa Amendment was to give Congress the power
to legislate in. those areas of civil rights in which
the state imposed or sanctioned discrimination.
Thaddeus Stevens expressed that purpose in the
course of debate on its passage:
"TMs amendment allows Congress to
correct the unjust legislation of the States,
so that the law which operates upon one
man shall operate equally upon all. What
ever law protects the white man shall
-40-
afford ’equal® protection to the black man.
Whatever means of redress is afforded to
one shall be afforded to all. "
Cong. Globe, 39th Congress
1st Session, 2459.
Senator Matt Carpenter later reflected in
the matter in the same vein:
"it [ t h e Fourteenth Amendment/ gives
Congress affirmative power to protect the
rights of citizens whereas before no such
right was given to save the citizen from
the violations of any of his rights by State
legislatures, and the only remedy was a
judicial case when one arose. "
Cong. Globe, 42nd Congress
1st Session 577
Congress had originally enacted a Civil
Rights Act in 1866, prior to the passage of the Four
teenth Amendment. Upon ratification of that Amend
ment, it re-enacted. Civil Rights legislation. The
original purpose of the Civil Rights Act was to pre
serve the rights of the freedmen against the hostile
legislation known as the Black Codes. And in order
to continue that safeguard, and to fend off future un
favorable legislation, Congress re-enacted what is
-41-
now recodified as 42 USCA 1981 and USCA 1982,
respectively. The sections provide:
"All persons within the jurisdiction of
the United States shall have the same right
in every state and territory to make and
enforce contracts, to sue, be parties,
give evidence, and to the full and equal
benefit of all law and proceedings for the
security of person and property as is en
joyed by white persons, and shall be subject
to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind and
no other. " 42 USCA 1981.
"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 property. " 42 USCA
1982.
The congressional warrant for passage of
this legislation flows from Section V of the Fourteenth
Amendment which provides: "The Congress shall
have power to enforce by appropriate legislation, the
Provisions of this article. "
-42-
While the entire matter was still fresh in
the minds of men who had lived through the constitu
tional crisis in which the legislation was enacted, the
Supreme Court agreed that:
"In fine, the legislation which. Congress
is authorized to adopt is . . . corrective
legislation, that is, such as may be neces
sary and proper for counteracting such
laws as the State may adopt or enforce, and
which by the Amendment they are prohibited
from making . . . "(Emphasis added)
Civil Rights Cases, 109 U. S. 3, 13, 14,
(1883)
The object of this section /l. 981 and
1982/ of this title was to place the colored
race in respect of civil rights on a level
with whites, and they make the rights and
responsibilities, civil and criminal exactly
the same f a s those of white persons/.
(Emphasis added). Virginia v. Rives. 100
U. S. 313, 317, 318.
Of course, a congressional enactment
passed pursuant to a constitutional grant of power is
the supreme law of the land.
-43-
"The Federal Constitution and laws
passed pursuant thereto are by express
terms of that instrument the supreme law
of the land . , . Property is more than
the thing which a person owns. It is ele
mentary that it includes the right to acquire,
use, and dispose of it. The Constitution
protects these essential attributes of pro
perty. Property consists of the free use,
enjoyment and disposal of a person's
acquisition without control or diminution
save by the law of the land . . . Buchanan
v. Worley, 245 U. S. 60, 74.
Despite the restrictive interpretations put
on the Fourteenth Amendment, these sections, par
ticularly Section 1982, have never been challenged
for unconstitutionality. They are the law of the land.
Buchanan v. Worley, supra; Hurd v. Hodge, 334 U. S.
24 (1948).
Congress then has pre-empted this field
and California may not detract from or subvert the
rights vouchsafed in Section 1982. In this connection,
it must be observed that the right vested in the Negro
is not a vague or illusory claim of equality. It is the
-4 4 -
same right as is enjoyed by white persons. If the
right of the Negro in respect of enjoyment of a right
in real property varies by one jot or title, he does
not have the same right and legislation which proposes
to vary that right must fail.
We have heretofore pointed out that the
initiative proposes to detract from the right of the
Negro to hold and enjoy real property by endowing the
white seller with the freedom to refuse to sell or
rent to Mm on purely racial grounds. That freedom,
we have demonstrated, emerges as the central pur
pose of the initiative when that central intent is iso
lated and abstracted from the evasive language in
which the initiative is cast. The initiative stands
exposed as the very kind of legislation against which
Section 1982 is directed and which Congress, acting
pursuant to the Fourteenth Amendment, has protected.
It is this legislation.flowing from the Four
teenth Amendment, and the Amendment itself, that
lodges in the President the power to issue Executive
Order No, 11063 which by its terms forbids discrim
ination in the sale and rental of federally assisted
housing. Federally assisted housing (as that term
concerns us here) is defined as housing built under
-4 5 -
the mortgage insurance or guarantee system of
Federal Housing Administration or Veterans Admin
istration and housing built under an urban Renewal
or Urban Redevelopment plan. California owners,
builders and developers of such housing cannot exer
cise that purported "absolute discretion" to dis
criminate sought to be vested in property owners by
the initiative. Nor can banks or lending institutions
lend construction funds unless the builder covenants
that he will not discriminate - - that is, will not
exercise that "absolute discretion" which masks the
discriminatory grant in the initiative.
We would have then the anomalous situation
in which one owner who exercised his right to avail
himself of the benefits of the National Housing Act
could not discriminate in sale or rentals consistent
with the terms of the Presidential Order while his
next door neighbor would be vested with the right to
discriminate in his "absolute discretion." Such a
state of affairs raises grave questions of the validity
of such a classification which is implicit in the ini
tiative.
We do not suppose that even proponents of
the initiative claim that persons who avail themselves
-46-
of the benefits of the National Housing Act can exer
cise the discriminatory privilege purportedly vested
in them by the initiative in light of the prohibitions of
Presidential Executive Order No. 11603.
We do not believe that the prohibition im
posed by the executive order is of any greater dignity
or any more compelling than the prohibition against
discriminatory legislation imposed by 42 USCA 1982.
And we are certain that proponents of the initiative
cannot evade the prohibitions of Section 1982 by con
cealing their purpose in the initiative itself while
they openly proclaim it in their public arguments and
appeals.
THE PROPOSAL EMBRACES MORE THAN
ONE SUBJECT, AND IS THEREFORE VOID.
Article 1Y Section 1 c of the C alifornia
Constitution provides that an initiative constitutional
amendment shall embrace but one subject, and that
if it contains more it shall not be placed upon the
ballot. The central, question in this connection is
whether the proposal before us embraces more than
one subject. We think that it does.
(1) The Law of Agency
The plain meaning of the initiative is that
-4 7 -
neither the state legislature, the Courts nor the exe
cutive can compel a.sale or rental against the will of
the seller. This prohibition has important conse
quences in the law of agency.
Under existing law a real estate broker,
like other agents, is entitled to compensation when
he has performed agreed-upon services for his prin
cipal. The seller may not act in a whimsical manner
in this context. The ordinary formulation of the real
estate broker's function is that he has earned his
commission when he has found a buyer ready, willing
and able to buy on the seller's terms. Under the
initiative, those landmarks will be swept away. The
broker properly employed in writing may find a buyer,
a white person, meeting those specifications but the
seller may reject the buyer for whimsical reasons in
his absolute discretion. The real estate broker will
be left without a remedy for collection of his com
mission because he will have known from the beginning
that the property owner always had the "absolute
discretion" to reject the buyer free from any state
compulsion. The property owner could no more be
held liable in this instance than he could be held
liable had the buyer produced by the real estate
-48-
broker been defective in readiness, willingness or
ability.
The disability visited on the real estate
broker through this classification is not similarly
visited on business opportunity brokers, or stock
brokers, or other brokers of various kinds. There
is no legitimate legislative purpose to be served by
the classification imposed. Here again we are met
with an attempted revision of Section 11, Article I
of the State Constitution. In addition, the initiative
provision embraces and relates to long settled and
defined contractual relationships in the purchase and
sale of real, property as set forth in Chapter 3.
Article 1, Business and Professions Code, although
that purpose nowhere appears in the initiative as an
aspect of its primary aim.
(2) Specific Performance of Contracts
The right of specific performance is deeply
rooted in our law and as provided for in the Civil Code;
NO REMEDY UNLESS MUTUAL. Neither
party to an obligation can be compelled
specifically to perform it, unless the other
party thereto has performed, or is com
pellable specifically to perform, everything
-49-
under the same obligation, either com
pletely or nearly so, together with full
compensation for any want of entire per
formance. Section 3386, Civil Code.
The proposed initiative completely destroys
mutuality in any contract for the sale of real property.
The seller is vested with the "absolute discretion” to
refuse to sell or rent in any such transaction, free
from any state compulsion to perform. Thus, if a
property owner enters into an agreement with a buyer
and then decides for whimsical reasons to abandon
his bargain, the buyer cannot avail himself of the
remedy of specific performance because of the lack
of mutuality in the contract. Here again is a classi
fication which sets real property owners apart from
owners of other property who are still subject to the
law of specific performance. And again there is no
legitimate legislative purpose to be served. This
attempted revision of Section 11, Article I of the
Constitution adds another instance of constitutional
change which the initiative purposes and also sets
forth another statutory example of the manner in
which the proposed initiative embraces and relates
to more than one subject matter not apparent on its
-50-
face or in its title,,
(3) Duties of Fiduciaries
The proposed initiative also proposes a
new classification to be determined by executors and
administrators, under its permission, in the sale of
real property. Under present provisions, real as
sets of an estate must be sold to the highest and best
bidder where a sale is made. The initiative would
clothe executors and administrators with the power
to rest their decisions as to sales of real assets on
racial or religious considerations. Presumably, the
executor or administrator could advertise that the
real property would be sold only to a white bidder;
in any event, he could reject the Negro high bidder
in his "absolute discretion" and the Court would be
absolutely powerless to "deny, limit or abridge"
that exercise of discretion. The estate would suffer.
Here, it is plain, the invitation to executors and ad
ministrators is to set up a racial or religious classi
fication of unwanted bidders for real property but
that limit is not expressed and the executor or admin
istrator could impose any other whimsical test he
might conjure up. There is no warrant in Section 11,
Article I as it now stands for this fantastic classification
-51-
and it is apparent that the initiative looks forward to
a change in the Section in this regard although there
is no inkling ©f the matter in the evasive words of the
initiative as written. It is plain too that the proposed
initiative relates to and embraces changes in Probate
Code Sections 7 80 et. seq. although* again* such
changes are not apparent on the face of the proposal.
What has been said as to sales by executors
and administrators of real property applies as to
sales by guardians and conservators of real assets of
the estates of incompetents and minors and conser-
vatees. There again* the initiative permits such
fiduciaries to set up a new classification of persons
to whom sales of real property can be denied even
where they are the high bidders for racial* religious
or entirely whimsical reasons within their "absolute
discretion. " No such classification is presently
tolerated under Section 11, Article I or under the
applicable Probate Code Sections 1530* 1934 in the
case of guardians* or 1853 in the case of conservators.
The initiative relates to and embraces these matters.
(4) The Law of Auction
Even the law of auction* a fairly obscure
field of the law* is intruded upon by the proposed
-52™
initiative. There* too* the auctioneer will be re
quired by directive of the initiative to divide bidders
into classes. The relevant section now reads:
An auctioneer in the absence of special
authorization to the contrary has authority
from the seller only as follows:
1. To sell by public auction to the
highest bidder. Section 2362* Civil Code.
Where land is involved, it is apparent that
the auctioneer need no longer sell to the highest
bidder. He may* upon instruction, reject the high
bid of the Negro and accept the low bid of the white
person. And that is not all. Neither the auctioneer
nor the bidder could ever know short of its exercise
how the absolute discretion of the owner was to be
exercised. The classification in this instance be
comes entirely whimsical and elusive. This arbitrary
classification of bidders applies only to bidders at
land auctions; other bidders retain their present
status. There is no legitimate end to be served here
and this revision of Section 11* Article 1 presents
another instance of subject matter included in the
initiative in addition to the ostensible purpose. The
change in Section 2362 Civil Code is not related to
-53-
the ostensible purpose of the initiative but is likewise
embraced within its scope.
(5) Restraints on Alienation
The initiative relates to certain statutes
and code sections and embraces their subject matter
within its scope in such a sweeping manner that the
violation of Article IV, Section 1 c is readily apparent:
1. Since 1872 California has forbidden
creation of conditions restraining alienation.
Conditions restraining alienation void
Conditions restraining alienation,
repugnant to the interest created, are void.
Section 711, Civil Code.
A condition in a deed against sale or leas
ing to Negroes fell within the prohibitions of this
section and was void as a restraint on alienation.
Title Insurance v. Garrott, 42 Cal. App. 152.
Of course, the people of this state may by
constitutional amendment change the rule against
restraints on alienation as the initiative proposes,
but they must do so directly, not by subterfuge. Here
it is certain that the initiative relates to and embraces
this as one of its subject matters although the issue
does not appear on the face of the initiative. The
-54-
direct effect of the initiative when it is examined in
a realistic manner and its purpose abstracted and
isolated is that of setting up a class of persons,
ordinarily Negroes, to whom alienation of land is
severely restricted. There is nothing to keep a
hundred, or a thousand or a million California pro
perty owners from executing and recording documents
setting forth their determination to restrain alien
ation of their property on racial or religious grounds.
(6) Restrictive Covenants
In 1961, California added two sections to
its Civil Code designed to free the people of this state
from the effect of racial restrictions in the sale and
occupancy of real property.
Any provision in any deed of real pro
perty in California, whether executed be
fore or after the effective date of this
section, which purports to restrict the
right of any person to sell, lease, rent,
use or occupy the property of a particular
racial or ethnic group, by providing for the
payment of a penalty, forfeiture, reverter
or otherwise, is void. Section 728, Civil
Code (1961).
-55-
(a) Every provision in a written in
strument relating to real property which
purports to forbid or restrict the convey
ance, encumbrance, leasing or mortgaging
of such real property to any person of a
specified race, color, religion, ancestry,
or national origin, is void.
(b) Every restriction or prohibition,
whether by way of covenant, condition upon
use or occupation, or upon transfer of
title to real property, which restriction or
prohibition directly or indirectly limits
the acquisition, use or occupation of such
property because of the acquirer's, user's
or occupier's race, color, religion, an
cestry, or national origin, is void.
(c) In any action to declare that a
restriction or prohibition specified in sub
division (a) or (b) of this section is void,
the court may take judicial notice of the
recorded instrument or instruments con
taining such prohibitions or restrictions.
Section 53, Civil. Code.
Again, it is undoubtedly true that the people
- 56 -
of this state may abrogate these sections by initiative
constitutional amendments. An initiative asserting
that purpose might be found valid. But here the code
sections are not mentioned. They are robbed of all
vitality and* in effect* repealed by the initiative which
vests in property owners the absolute right to do
orally or in writing the very things that the proscribed
documents sought to do. The essence of the matter
as far as our inquiry is concerned is that the initiative
does relate to and embrace the subject matter of
these sections of the Civil Code. Thus* the property
owner might by the superior permission of the con
stitutional initiative set forth in writing and record
the fact that he* in his absolute discretion* had de
termined that he would not sell or rent his real pro
perty to Negroes or to other persons whom he might
select on an ethnic, whimsical or religious basis.
Such a recorded document would indeed not be void,
rather it would be placed beyond reach of state process,
legislative, judicial or executive. The statutes be
come void, or meaningless.
(7) Urban Redevelopment and Renewal
We have heretofore pointed, out that by virtue
of Presidential Executive Order 11603, persons who
-57-
offer housing for sale or rent which is constructed
under urban renewal or urban redevelopment plans
where commitments are obtained, after November 20,
1962, are forbidden to discriminate in such sales or
rentals. However, in addition, California has an
elaborate statute covering the subject of such housing
to which the initiative relates and which it embraces
by implication and by certain construction.
Legislative declaration; discrimination,
It is hereby declared to be the policy of the
State that in undertaking community rede
velopment or urban renewal projects under
this part (commencing at Section 3300)
there shall be no discrimination because
of race, color, religion, national origin,
or ancestry. Section 33049, Health &
Safety Code (1959).
Discrimination in redevelopment or
urban renewal projects. Obligation upon
lessees and purchasers of land. Agencies
shall obligate lessees and purchasers of
real, property acquired in redevelopment
or urban renewal projects and owners of
property improved as a part of a redevelopment
-58-
or urban renewal project to refrain from
restricting the rental, sale, or lease of
the property on the basis of the race, color,
religion, ancestry, or national origin of
any person.
.Final Plans; contents; submission for
approval. Every final redevelopment plan
or urban renewal plan, prior to its sub
mission for approval to the legislative
body having jurisdiction, shall contain a
provision requiring for submission to
community redevelopment agency for ap
proval, all deeds, leases, or contracts
for the sale, lease, sublease, or other
transfer of any land in a redevelopment
project or an urban renewal project and
such deeds, leases, or contracts shall
contain the nondiscrimination or non
segregation clauses hereafter prescribed.
Provisions in deeds, leases and con
tracts. Express provisions shall be in
cluded in all deeds, leases and contracts
which the agency proposes to enter into
with respect to the sale, lease, sublease,
-59-
transfer, use, occupancy, tenure, or en
joyment of any land in a redevelopment
project or an urban renewal project in sub
stantially the following form:
(a) Deed; contents. In deeds the follow
ing language shall appear - - "The grantor
herein covenants by and for himself, his
heirs, executors, administrators and as
signs, and all persons claiming under or
through them, that there shall be no dis
crimination against, or segregation of, any
person or group of persons on account of
race, color, creed, national origin, or
ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or en
joyment of the premises herein conveyed,
nor shall any grantee himself or any person
claiming under or through him, establish
or permit any such practice or practices
of discrimination or segregation with ref
erence to the selection, location, number,
use, or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the
premises herein conveyed. The foregoing
-6 0 -
covenants shall run with the land. "
(b) Leases; contents. In leases the
following language shall appear - - "The
lessee herein covenants by and for himself*
his heirs* executors* administrators* and
assigns* and all persons claiming under or
through them* and this lease is made and
accepted upon and subject to the following
conditions:
That there shall be no discrimination
against or segregation of any person or
group of persons on account of race* color*
creed, national origin* or ancestry* in the
leasing* subleasing* transferring* use*
occupancy, tenure* or enjoyment of the
premises herein leased* nor shall the
lessee himself* or any person claiming
under or through him* establish or permit
any such practice or practices of discrim
ination or segregation with reference to the
selection, location* number* use or oc
cupancy of tenants* lessees* sublessees*
subtenants* or vendees* in the premises
herein leased. "
-61-
(c) Contracts; contents. In contracts
entered into by the agency relating to the
sale, transfer, or leasing of land or any
interest therein acquired by the agency
within any redevelopment or urban renewal
area or project the foregoing provisions
in substantially the forms set forth shall be
included and such contracts shall further
provide that the foregoing provisions shall
be binding upon and shall obligate the con
tracting party or parties and any subcon
tracting party or parties, or other trans
ferees under the instrument. Section 33050,
Health and Safety Code (1961).
Legislative declaration
The Legislature of the State of California
recognizes that among the causes of slum
and blighted areas are the following factors:
(c) Racial discrimination against per
sons of certain groups in seeking housing.
It is therefore declared to be the public
policy of this state that, in order to cope
with the problem of rehabilitation of slum
or blighted areas, these factors shall, be
-62-
taken into consideration in any rehabilita
tion or redevelopment program. Section
33G70, Health & Safety Code (1961).
Plainly* the initiative would vitiate this
statutory plan designed to protect rights of Negroes
to purchase* lease or rent housing made available
under urban renewal or urban redevelopment. The
command of the initiative constitutional amendment
that the state shall not "deny* limit* or abridge*
directly or indirectly* the right of any person who is
willing or desirous to sell* lease* or rent any part
or all of his real property to decline to sell* rent, or
lease such property to such person or persons as he,
in his absolute discretion, chooses" is superior to
the statutory direction that nondiscriminatory and non-
segregatory provisions of the Health and Safety Code
be written into deeds* leases and contracts. The
whole statutory scheme of the Health and Safety
Code outlined with so much particularity and care,
is swept away. We agree* as we must* that the
people of this state may exercise their sovereign
right to change the legislative will by initiative con
stitutional amendment but where that task is under
taken* the purpose must appear as a subject of
-63-
the initiative. Here it is certain beyond doubt
that the initiative relates to and embraces the
subject matter of the cited sections of the Health and
Safety Code; it is equally certain that this subject
matter is not apparent on the face of the initiative*
nor even hinted at.
THE PROPOSAL REPRESENTS AN UN
LAWFUL ATTEMPT TO REVISE RATHER THAN
AMEND THE STATE CONSTITUTION.
The only methods provided for amending
the California Constitution are set out in Article
XVIII, Section 2 thereof. The procedure here fol
lowed by proponents is not one of them. Livermore
vs. Waite* 102 Cal. 113* 117-119; McFadden vs.
Jordan* 32 Cal. 2d 330* 332. In the Livermore case*
it is said:
"An Amendment1 is such a change or
addition within the lines of the original
instrument as will effect an improvement
or better carry out the purpose for which
it was framed. "
The original document here sought to be
altered is the California Constitution* Article 1*
Section 1 of which now guarantees all persons the
-64-
right to acquire and possess property. The present
constitution guarantees every person equal protection
of the laws, and recognizes the right to acquire pro
perty as a civil right. Miller vs. McKenna, 23 Cal.
2d 774, 7 83. The proposal here under consideration
would change all this by abolishing the right to ac
quire property as one of that bundle of rights now
guaranteed. The right to acquire property would
turn upon the absolute discretion of owners, and. a
right so circumscribed is no right at all.
Thus, the proposal does not "amend" the
existing constitution, but rather "revises" it by
changing its whole philosophy from the equalitarian
view of the rights of man to the fascist view that
might makes right, and he who has may keep, at his
absolute discretion.
1. The Right to Acquire Property
Our state constitution now commences
as follows:
"All men are by nature free and in
dependent, and have certain inalienable
rights, among which are those of enjoying
and defending life and liberty; acquiring,
possessing and protecting property;
-65 -
pursuing and obtaining safety and happiness. "
This Court has held that the cited article
means that:
"The right of 'acquiring, possessing
and protecting property is anchored in
the first section of the first article of our
Constitution. It lies at the foundation of
our constitutional government, and is
'necessary to the existence of civil lib
erties and free institutions'. " (Billings
v. Hall, 7 Cal. 1, 6). Miller v, McKenna,
23 Cal. 2d 774, 783.
Thus, it is plain that as it now stands,
Article I, Section 1 completely safeguards the right
of free alienation and enjoyment of property. Pro
ponents of the initiative want more. They want con
stitutional sanction for their claimed right to dis
criminate on racial or religious grounds.
In effect, proponents of the initiative would
revise Article I, Section 1 to make it read:
"All men are by nature free and inde
pendent and have certain inalienable rights
among which are those of enjoying and de
fending life and liberty; acquiring,
-66-
possessing and protecting property, pro-
vided however that the right of any person
willing or desirous to sell, to decline to
sell, rent or lease his real property to
another for racial or religious reasons
shall remain forever inviolate; and pur
suing safety and happiness. "
Proponents of the initiative shrink from
taking that simple route to their goal for the obvious
reason that they fear that to do so would invoke con
stitutional sanctions, state and federal. We agree.
Therefore, they cloak their design in a welter of
words in an effort to escape their dilemma. We do
not think that racial or religious discrimination can
be made constitutionally palatable by an exercise in
semantics for reasons we have set forth in our prior
memorandum.
At this posture of the matter, it seems
plain that the proponents of the initiative have not
only embraced repeal of the Rumford Act and related
statutes to their proposal, but they also propose a
vital revision of Article I, Section 1 of the State
Constitution. Nor have they stopped there.
2. General Laws must have Uniform
-67-
Application
Perhaps unwittingly, proponents of the
initiative would also effect widespread revision of
Section 11, Article I of the California Constitution
which now reads:
"All laws of a general nature shall
have a uniform operation. " California
Constitution, Article 1, Section 11.
Section 11 is in essence an equal protec
tion provision and the inquiry in almost every case
in which equal protection is an issue is whether or
not a classification, by statute or by initiative, im
poses a disability or confers a special benefit by
reason of the class If icatory scheme. Of course,
there is no state constitutional inhibition against an
initiative amendment which imposes a presently
prohibited classification, but in that case the initi
ative would have to avow that purpose and the
"amendment . . . proposed by the initiative" would
have to "relate to" that "one subject. "
Our examination of the classifications at
tempted by the initiative is severalfold in outlook.
First, we inquire into them to determine whether or
not they are of such a character that they evidence a
-68-
determination by the proponents to revise Section 11
itself and thus impinge on the constitutional rule
announced in Article IV, Section 1 c, against multi
plicity of subject matter in an initiative measure.
Finally, we inquire in order to determine whether
the new classifications, even if found valid and un
objectionable per se, work such changes in statutory
law that the initiative by virtue of those changes
embraces and relates to more than one subject matter.
The test of classificatory validity, it has
been said, in a thousand different ways, is reason
ableness and a substantial relation to a legitimate
end to be accomplished. Katzev v. Los Angeles,
52 Cal. 2d 360.
All owners of residential property are
purportedly included in that class of persons who may
exercise an "absolute discretion" t© "decline to sell,
rent, or lease" real property. The classification is
aborted at the outset by the fact that Presidential
Executive Order 11603, issued November 20, 1962,
by the late President John F. Kennedy, forbids
racial, or religious discrimination, in the sale or
rental of federally assisted housing, a term that, as
relevant here, includes all housing constructed under
-69 -
the mortgate insurance or guarantee systems of
Federal Housing Administration or Veterans Admin
istration and all housing constructed under urban
renewal or urban redevelopment plans under com
mitments obtained in either case since November 20,
1962. The Order's injunction against exercise of
such discrimination is, of course, a direct interdic
tion against an exercise of that "absolute discretion"
sought to be vested by the initiative. Thus, there
are two groups of Californians; identical in all
respects, except that one group has availed itself of
the benefits of the National Housing Act and the other
has not.
Proponents of the initiative single out
beneficiaries of the Act from November 20, 1962
forward as a class upon whom they will visit what
they obviously regard as a hardship. (We do not
suppose that even they claim that the initiative would
supersede the Executive Order.) The harsh realities
of the segregated housing market bear out the prog
nosis that there will be an inundation by Negroes in
FHA. and VA tracts open to Negro occupancy under
terms of the Presidential Order if other areas are
closed to Negroes through passage of the initiative.
-70 -
In that sense, the implicit classification sought to be
imposed on FHA, VA and urban renewal and rede
velopment owners, builders and developers by the
initiative is grossly unfair.
The purpose of the National Housing Act
as expressed in its preamble is to provide "a decent
home and suitable living environment for every
American family. " California has a paramount in
terest in encouraging its citizens to avail themselves
of the benefits of the Act where their doing so will
further those ends. If, as proponents of the initiative
would have us believe, Its passage would be bene
ficial to the class it could cover, it would, by parity
of reasoning, be deterimental to those excluded from
It.
The onerous classification attempted here
obviously embraces and relates to the subject mat
ter of Section 11, Article I of the State Constitution
in this respect.
-71 -
CONCLUSION
We believeve that we have demonstrated that
the proposed alleged initiative constitutional amend
ment should be denied a place on the ballot. In so
doing we do not concede for a moment that we have
made an attack upon the initiative process itself as
many have claimed. Those who would foist uncon
stitutional schemes upon the people by this method
offer the only real threat to the initiative process.
In asking this Court to rule upon the con -
stitutionality of this proposal, we are not unmindful
of the observations made in Wind vs. Hite, 59 Cal.
2d 415, to the effect that it is preferable to defer
constitutional questions until after a measure passes.
There the subject was the right to play draw poker in
Los Angeles County. Here the stakes are infinitely
higher. We are dealing with the right of hundreds of
thousands of Negroes and members of other minority
ethnic groups to escape the social death sentence
imposed upon them and their children by residential
housing segregation patterns which tend to confine
them to slum and ghetto houses, with schools to
match their homes. Those most adversely affected
by this proposal are generally of low economic
-72 -
circumstances and will hardly be able to compete
with the proponents for television and radio time,
newspaper space and billboards,,
We do not believe that this Court intended
to adopt an inflexible rule against passing on the
constitutionality of such measures until after they are
enacted. Certainly, for instance, if the proponents
sought by the initiative process to legalize Negro
slavery in California this Court could hardly ignore
such a threat. If this is so, we submit that the 14th
Amendment has equal dignity with the 13th, and the
rights guaranteed under it should be given equal pro
tection.
Since that which is unconstitutional is also
illegal, we believe that where a taxpayer brings an
action under Section 526a, California Code of Civil
Procedure, every court has a duty to pass on any
constitutional question raised. See Caine vs, Robbins,
(Nev,) 131 Pac ad, 516; Livermore vs, Waite, supra.
Otherwise, we have the anomalous situation in which
a taxpayer may enjoin expenditures which would vio
late a statute or ordinance, but is helpless when the
threatened expenditure contravenes the fundamental
law of the land. We see no bases for such a distinction.
-73-
Even if this Court chooses not to pass on
the constitutional issues, we believe that we have
shown that the writ here sought should be granted for
other reasons. The proposal clearly embraces more
than one subject, and also is an illegal attempt to
revise the constitution under the guise of an amend
ment. What is more, the proponents have invalidated
their proposal by failing to disclose to the Attorney
General their chief purpose, and by using their
privately prepared statement of purposes to induce
voters to sign the petition.
The Writ of Mandate should issue as
prayed:
Respectfully submitted,
NATHANIEL S. COLLEY
COLLEY AND McGHEE
LOREN MILLER
MILLER AND MALONE
Attorneys For Petitioner
-74-
/'
t s r j ' A / s S / r ' / ?
S ' November 6, 1963
: Honorable Stanley Mosk
jorney General of the
State of California
) State Building
i Angelesj California
ir Sir:
Pursuant to Article IV, Section 1, of the Constitution
the State of California and Sections 3500 to 3507, inclusive,
the Elections Code of the State of California, we submit to
i! herev/ith the enclosed draft of Initiative Petition. We request
it you prepare a title and summary of the chief purposes and
Lnts of the measure and take such other steps as required by
a. fsA check for the prescribed fee is attached.
Please address all communications and inquiries with
spec.t to this matter to Laurance H. Wilson, President, Cali-
rnia. Real Estate Association, Room 1100, 117 West Ninth Street,
s Angeles 15, California.
Very truly yours.
LIFORNIA. REAL ESTATE
ASSOCIATION
'// J/?'7 uranee H. Wilson, President A/bLhurance HT Wilson,
50m 1100, 117 West Ninth Street / A & Q Ventura Street
Los Angeles 15, C a l i f o r n i a - ' 'Fresno 21, California
Indxvidu
LIFORNIA APARTMENT OWNERS
ASSOCIATION
"V 7
A..
b # c ( "Robert L. Shell, State President
320 - 17th Street
Oakland, California
T Y 2 A ' c r v-y-
'Robert A".."Clin,' 'Individually
777 Foothill Boulevard
Claremont, Californi
J/7 .:; v r. / /
Robert Lb Snell", Individually
320 - 17th Street
Oakland, California
William-A . Walters," Sr.,
Individually
3923 West Sixth Street
Los Angeles 5, California
'/
OFFICE OF TH E A T T O R N E Y GENERAL
Lifiiartimnrl i d IiuUia'
L I B R A R Y A N D C O U N t b B U I L D I N G . »:>A C R A M L N 1 O t 4
November 7> 1963
Laurance H. Wilson, President
Room 1100, 117 West Ninth Street
Los Angeles Ip# California
Robert L. Snell, State President
320 - 17th Street
Oakland, California
Robert A. Clin, Individually
777 Foothill Boulevard
Claremont, California
Reg F. Dupuy, Individually
3999 Atlantic Avenue
Long Beach, California
Lauranee H. Wilson
Individually
2 34 8 Ventura Street
Fresno 21, California
Robert L. Snoli, Individually
320 - 1 7th Street
Oakland, California■
William'A. Waiters, Sr.,
Individual'y
3923 West sixth Street
Los Angeles 5, California
Res SALES AND RENTALS OF RESIDENTIAL
REAL PROPERTY, INITIATIVE
CONSTITUTIONAL AMENDMENT,
Dear Sirs: *
Pursuant to your request delivered to this office on
Wednesday, November 6, 1 9 6 3, we have prepared and submit
to you as the proponents the following title and summary
of the chief purposes and points for your proposed
initiative measure:
SALES AND RENTALS OP RESIDENTIAL REAL PROPERTY.
INITIATIVE CONSTITUTIONAL AMENDMENT. Prohibits State,
-subdivision, or agency thereof from denying, limiting,
or abridging right of any person to decline? to sell,
lease, or rent residential real property to any person
as he chooses. Prohibition not applicabie to property
owned by State or its subdivisions; prop; rty acquired by i
eminent domain; or transient lodging accommodations
by hotels, motels, and similar public places.
Very truly yours,
STANLEY KOSX, Attorney General
• By
E. G. BENARp, Assistant Attorney Genoi
EGB: Jr.
“The proposed Constitutional Amendment,
appearing on che face of the petition would
restore the right of property owners to sell,
lease or rent their real property to persons
of their own choosing.
Fills constitutionally guaranteed right
has been partially taken away from them by
recently enacted laws in the State.
Your signature on this petition will
"s
assist in our efforts to give the people of
this State the opportunity no vote to restore
these rights.
STATEMENT OF PURPOSES
w ./v '\y^ (/■--A.- r e
iafifornia REAL ESTATE M agazine
OFFICIAL PUBLICATION
CALIFORNIA
REAL ESTATE ASSOCIATION
Editorial
)L, XLIV NO. 2
THE FORCED HOUSING ISSUE
_______ Representatives of CREA, the California Apartment House Owners Associ-
DEC., 1963 ation and the Home Builders Association have filed an initiative for an amend-
ilished first of month by the Califor-
Real Estate Association, publishers
1 owners, at Room 1100, W. M. Gar-
1 Building, 117 W. Ninth Street, Los
geles 15. Phone MAdison 7-0428.
gle copy, except June, 35 cents. Sub-
ption $4.00 a year, including June
e Book. Single copy, June issue, $5.00.
tered as second class matter July 8,
9, at the post office at Los Angeles,
ifomia, under the act of March 3,
9. Second class postage paid at Los
(eles, California.
117 West 9th Street
Los Angeles 15, California
MAdison 7-0428
ment to the State Constitution.
The initiative reads: “Neither the state nor any subdivision 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.
“ ‘Person’ includes individuals, partnerships, corporations and other legal
entities and their agents or representatives but does not include the State or
any subdivision thereof with respect to the sale, lease or rental of property
owned by it.
‘“ Real property’ consists of any interest in real property of any kind or
quality, present or future, irrespective of how obtained or financed, which is
used, designed, constructed, zoned or otherwise devoted to or limited for
residential purposes whether as a single family dwelling or as a dwelling for
two or more persons or families living together or independently of each other.
“This Article shall not apply to the obtaining of property by eminent domain
pursuant to Article I, Sections 14 and 1414 of this Constitution, nor to the renting
or providing of any accommodations for lodging purposes by a hotel, motel or
other’ similar public place engaged in furnishing lodging to transient guests.
“ If any part or provision of this Article, or the application thereof to any
person or circumstance, is held invalid, the remainder of the Article, including
the application of such part or provision to other persons or circumstances, shall
not be affected thereby and shall continue in full force and effect. To this end
the> provisions of this Article are severable."
If voted in at the next general election, the amendment will restore the right
of choice to the property owner in this state. That right has been partially taken
away through a series of laws passed by the California Legislature during the
past few years. The latest, effective September 20 of this year, forbids refusal
to sell, lease or rent private property for reasons of race, creed, color, religion
or national origin.
It is a dangerous precedent when one group is conceded rights over others
because of an accident of birth or belief. What possible authority could anyone
have to knock on a property owner’s door and demand that he be selected as
the one with whom to deal, simply because he desires that particular property?
,To say that he has such a right, and back him with law, amounts to confis
cation by the state.
These laws may have been passed with the best of intentions. They are,
nevertheless, eroding the most fundamental right Americans enjoy — the right
to own property, to use it as they see fit, and to dispose of it without govern
mental interference.
Your help is needed to get signatures on petitions to qualify this initiative.
The people must have the opportunity to cast their votes on this vitally im
portant issue.
«. O U 3 X
"EXHIBIT £
The People of the State of California do enact the following con
stitutional amendment to be added as Section 26 of Article I of the Constitution
of the State of California:
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 desirous 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.
'Person' includes individuals, partnerships, corporations and
other legal entities and their agents or representatives but does not include the
State or any subdivision thereof with respect to the sale, lease or rental of
property owned by it.
'Real property' consists of any interest in real property of any
kind or quality, present or future, irrespective of how obtained or financed,
which is used, designed, constructed, zoned or otherwise devoted to or
limited for residential purposes whether as a single family dwelling or as a
dwelling for two or more persons or families living together or independently
of each other.
This Article shall not apply to the obtaining of property by
eminent domain pursuant to Article 1, Sections 14 and 14-1/2 of this Constitu
tion, nor to the renting or providing of any accommodation for lodging purposes
by a hotel, motel or other similar public place engaged in furnishing lodging to
transient guests.
If any part or provision of this Article, or the application thereof
to any person or circumstance, if held invalid, the remainder of the Article
including the application of such part or provision to other persons or circum
stances, shall not be affected thereby and shall continue in full force and
effect. To this end the provisions of this Article are severable.
jj| r p - *
lfWe have a law in California, often
called the Rumford Housing Act, which became
effective September 20, 1963, and which says
the homeowner must not refuse to sell, rent or
lease on the basis of race, color, creed or
national origin... "So now we need a new
proposal... a new law to restore your freedom
of choice... It states that you, or any
individual can refuse to sell, rent or lease
your property as you desire. You are the judge.
You rent or lease... as you choose." —(Emphasis
-theirs)