Correspondence from Lani Guinier, Ronald L. Ellis, and Pamela Karlan to P.A. Hollingsworth, Esq. Re Reapportionment of Little Rock Board of Directors

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

IN THE

iktprme (Eimrt of the Bint? of CMttoma

L. A. No. 28360

LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,
vs.

NEIL REITMAN, et al., Defendants and Respondents.

Appeal from the Superior Court o f Orange County 

Honorable Raymond Thompson, Judge

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

THE NATIONAL COMMITTEE AGAINST DIS­
CRIMINATION IN HOUSING

B y:

RICHARD A. BANCROFT,
683 McAllister Street,
San Francisco, California 94102,

JACK GREENBERG,
JOSEPH B. ROBISON,
SOL RABKIN,

New York, N. Y.,

Attorneys for Amici Curiae.

(Continued on Inside Cover)



L. A, No. 28422
W ILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, 

on behalf o f themselves and all persons similarly situated,
Cross-Defendants and Respondents,

VS.

CLARENCE SNYDER, Cross-Complainant and Appellant.
Appeal from the Superior Court of Los Angeles County 

Honorable Martin Katz, Judge

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

vs.
BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

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

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

vs.
CRAWFORD MILLER, Defendant and Respondent.

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

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

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

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

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

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

vs.

ERICH MEYER, Defendant and Respondent.
. Appeal from the Municipal Court of the 

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

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

body, corporate and politic, Petitioner,
VS.

KARL BUCKMAN, Chair man of the Redevelopment Agency of the City 
of Fresno, Respondent.

Petition for Writ of Mandate



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

IN THE

Supreme (Eottrt nf tip §>tntv of CHaltfontia

L. A. No. 28360

LINCOLN W. MULKEY, et al., Plaintiffs and Appellants,
vs.

NEIL REITMAN, et al., Defendants and Respondents.

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

L. A. No. 28422

WILFRED J. PRENDERGAST and CAROLA EVA PRENDERGAST, 
on behalf o f themselves and all persons similarly situated,

Cross-Defendants and Respondents, 
vs.

CLARENCE SNYDER, Cross-Complainant and Appellant.

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

L. A. No. 28449

THOMAS ROY PEYTON, M.D., Plaintiff and Appellant,
vs.

BARRINGTON PLAZA CORPORATION, Defendant and Respondent.

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

Sac. No. 7657

CLIFTON HILL, Plaintiff and Appellant,
vs.

CRAWFORD MILLER, Defendant and Respondent.

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



2

S. F. No. 22019

DORIS E. THOMAS, Plaintiff and Appellant,
■ vs.

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

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

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

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

vs.
ERICH MEYER, Defendant and Respondent.

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

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

S. F. No. 22017

REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a public 
body, corporate and politic, Petitioner,

■vs.
KARL BIJCKMAN, Chairman of the Redevelopment Agency of the City 

o f Fresno, Respondent.
Petition for Writ of Mandate

SUPPLEMENTAL BRIEF OF AMICI CURIAE NAACP LEGAL 
DEFENSE & EDUCATION FUND, INC. AND NATIONAL 

COMMITTEE AGAINST DISCRIMINATION IN HOUSING*

This Court has asked for supplemental briefs dealing 
with the impact of the United States Supreme Court’s 
decision in Evans v. Newton, 86 8. Ct. 486, on the above- 
entitled pending cases. Amici curiae submit that Evans v.

* The interest of the NAACP Legal Defense & Education Fund, Inc. 
is stated in its amicus curiae brief previously filed in these proceedings. 
The interest of the National Committee Against Discrimination in Hous­
ing is described in the amici curiae brief of Philip Adams et al. also 
previously filed.



3

Newton is highly persuasive authority for the proposition 
that Article I, Section 26 of the California Constitution 
violates the Fourteenth Amendment to the United States 
Constitution.

In Evans v. Newton, the City of Macon, Georgia became 
involved in the administration of a public park under a 
private will which limited use of the park to white persons. 
The city had recognized in recent years that, under the 
Fourteenth Amendment, it could not exclude Negroes from 
the park. See Pennsylvania v. Board of Trusts, 353 TJ.S. 
230. A suit was brought in the Georgia courts by the Board 
of Managers of the park against the City to compel it to 
resign as trustee so that the provision of the will requiring 
exclusion of Negroes could be observed. The City there­
upon tendered its resignation which was accepted and pri­
vate trustees were appointed by the state court. The only 
reason for the appointment of the private trustees was to 
enable Negroes to be excluded from the park.

The Supreme Court of the United States reversed on 
grounds which are pertinent to the subject cases. The 
Court pointed out that “ The action of a city in serving as 
trustee of property under a private will serving the seg­
regated cause is an obvious example” of “ [CJonduct that 
is formally ‘private’ ” but which has “ become so entwined 
with governmental policies or so impregnated with a gov­
ernmental character as to become subject to the constitu­
tional limitations placed upon state action.” Evans v. 
Newton, 86 S. Ct. at 488. The essence of the opinion was 
that the state-private involvement which brought about 
Fourteenth Amendment control had not become “ disen­
tangled.” Id. at 490.

The same week that the court decided Evans v. Newton, 
the United States Court of Appeals for the Fourth Circuit



4

decided Hawkins v. North Carolina Dental Society, No. 
9612. We bring this opinion to the attention of this Court 
because, while dealing with a different fact situation, it 
applies the same principle. In the Hawkins case, the plain­
tiff, a Negro, sued for admission as a member of the North 
Carolina Dental Society, basing his claim primarily upon 
the fact that members of the society, by statute, elected 
the State Board of Dental Examiners, a governmental body. 
Following the filing of the case, the state repealed the 
statute. The court nevertheless took note of the fact that, 
in actual practice, the Dental Society still exercised the 
powers it had had under the statute. Accordingly, the court 
held that the limitations of the Fourteenth Amendment still 
applied and that the plaintiff was entitled to admission to 
this state agency.

Each of these cases, Evans and Hawkins, deals with a 
different type of situation but each has in common the 
characteristic that once Fourteenth Amendment control at­
taches, repeal of legislation or of an arrangement that 
involved the Amendment does not automatically remove the 
influence of the Fourteenth Amendment from the situation. 
At the very minimum the burden is upon those formerly 
controlled by the Fourteenth Amendment to show that 
there has been complete “ disentanglement.”

In this case, the State of California had enacted fair 
housing legislation. This legislation was not a mere fortui­
tous sally into the area of housing regulation, but was 
designed to implement “cherished aims of American feel­
ing.” Railway Mail Association v. Corsi, 326 U.S. 88, 98 
(1946). It was a recognition by the State that it had a duty 
under its police power to take action against housing dis­
crimination in order to prevent and eliminate the clear and 
present danger of serious social evil resulting from such 
discrimination. It was designed to implement the equal



5

protection clause of the Fourteenth Amendment which 
states that no state may deny “equal protection of the 
laws.”

By the fair housing legislation which Article I, Section 
26 purported to annul, certain property rights were con­
ferred not only on Negro American citizens but also on 
all other members of the community to be protected from 
these evils. Those property rights were conferred not only 
to secure the protection of equal laws but pursuant to 
Congressional enactment of federal policy. See 42 U.S. 
Code Section 1982:

All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by 
white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property. R. S. 
§1978.

California, having recognized its constitutional obliga­
tion and having secured a remedy to protect the rights of 
Negro and all other citizens in certain property, cannot 
now divest those rights. Indeed, Evans v. Newton and 
Hawkins v. North Carolina Dental Society are but particu­
lar examples in a racial context of the constitutional rule 
provisionally established by the Supreme Court of the 
United States in Truax v. Corrigan, 257 U.S. 312, 329:

It is true that no one has a vested right in any par­
ticular rule of the common law, but it is also true that 
the legislative power of a State can only be exercised 
in subordination to the fundamental principles of right 
and justice which the guaranty of due process in the 
Fourteenth Amendment is intended to preserve, and 
that a purely arbitrary or capricious exercise of that 
power whereby a wrongful and highly injurious in­



6

vasion of property rights, as here, is practically sanc­
tioned and the owner stripped of all real remedy, is 
wholly at variance with those principles.

Implicit in the Evans and Hawkins rulings is the concept 
that it is the fact rather than the legal structure of unequal 
protection that determines application of the Fourteenth 
Amendment. The State will not be allowed to avoid its 
constitutional obligation by attaching or removing labels 
or by fraudulently seeming to wash its hands of a respon­
sibility which it cannot in truth avoid.

Over a period of years, the State of California enacted 
a series of laws which recognized that its pre-existing legal 
system resulted in unequal opportunity, because of race, 
to obtain a “ necessary of life.” Block v. Hirsh, 256 U.S. 
135, 156. In Evans, the Supreme Court said, “ . . . when 
private individuals or groups are endowed by the State 
with powers or functions governmental in nature, they 
become agencies or instrumentalities of the State and sub­
ject to its constitutional limitations.” 86 S. Ct. at 488. It 
also quoted its earlier holding in Marsh v. Alabama, 326 
U.S. 501, 509, that a State may not permit private enter­
prises “ to govern a community of citizens so as to restrict 
their fundamental liberties . . . ”

By nullifying its laws against discrimination in housing, 
California has done what these cases say it may not do. 
It has restored the system under which every housing unit 
placed on the market by private enterprise carries a label 
marking it as available for either one race or another, 
but not for all. It has given private builders the power 
not merely to “ govern” communities but to create them in 
a manner that restricts “fundamental liberties.”

It is also important that the Court, in Evans, recognized 
that discrimination in the park in question might not have



7

been unconstitutional if the City had never been involved 
but that the involvement of the City created a “momentum” 
that could not simply be turned off by City withdrawal. 
86 S. Ct. at 489. So here, the State, recognizing the funda­
mental inequality in housing opportunity created under its 
laws, undertook to exercise its police power to bring about 
equality. Its present reversal of that decision constituted 
affirmative action in support of inequality that violated “ the 
mandates of equality and liberty that bind officials every­
where.” Nixon v. Condon, 286 U.S. 73, 88.

Respectfully submitted,

R ic h a r d  A. B a n c r o f t ,
J a c k  G re e n b e r g ,

Attorneys for NAACP Legal Defense 
and Educational Fund, Inc., Amicus 
Curiae,

J o se ph  B . R o b is o n ,
S ol  R abicin ,

Attorneys for National Committee 
Against Discrimination in Housing

February 1966







MEILEN PRESS INC. —  N. Y. C. otgggs*