Johnson, In re

• Decision Date: 15 May 1967
• Docket Number: No. 38515,38515
• Citation: 71 Wn.2d 245,427 P.2d 968
• Parties: In the Matter of Jangaba Augustine JOHNSON, Complainant. J. M. WHEELER, owner, Wheeler's Barber Shop, Appellant, v. WASHINGTON STATE BOARD AGAINST DISCRIMINATION, Respondent.
• Court: Washington Supreme Court

Page 245

71 Wn.2d 245

427 P.2d 968

In the Matter of Jangaba Augustine JOHNSON, Complainant.

J. M. WHEELER, owner, Wheeler's Barber Shop, Appellant, v. WASHINGTON STATE BOARD AGAINST DISCRIMINATION, Respondent.

No. 38515.

Supreme Court of Washington, En Banc.

May 15, 1967.

Bantz & Hemovich, Michael J. Hemovich, Spokane, for appellant.

John J. O'Connell, Atty. Gen., Olympia, Morton M. Tytler and Charles B. Roe, Jr., Asst. Attys. Gen., for respondent.

Francis Conklin, Spokane, amicus curiae.

HAMILTON, Judge.

J. M. Wheeler, a licensed barber and the owner of Wheeler's Barber Shop in downtown Spokane, refused to cut Jangaba Augustine Johnson's hair. Mr. Johnson is a citizen of Liberia, Africa, the son of the Minister of Culture of Liberia, and, at the time of the incident, was a student at Gonzaga University under a Fulbright scholarship. Mr. Wheeler, who was 76 years of age at the time of the incident, concedes he refused barbering service because of Mr. Johnson's race.

A complaint was filed with the Washington State Board Against Discrimination (hereafter referred to as the Board). Conciliation efforts failed, and a hearing was duly scheduled before a properly designated hearing tribunal. The facts were stipulated, and the hearing tribunal found that Wheeler's Barber Shop was a place of public accommodation as defined in RCW 49.60.040, ¹ and that Mr Wheeler's conduct toward Mr. Johnson was discriminatory and constituted an unfair practice as defined in RCW 49.60.215. ²

The tribunal then issued an order requiring Mr. Wheeler to cease and desist from discriminating between customers in his barber shop because of their race, creed, color, or national origin. In addition, the tribunal directed that Mr. Wheeler take the following additional steps:

(1) Mr. Jangaba A. Johnson, Robinson Hall, Gonzaga University, Spokane, Washington, will be advised by letter that he, and all other persons, without regard to their race, creed, color or national origin, will be served as customers of respondent, under the same uniform terms and conditions as apply to all other customers. The letter will be mailed to Mr. Johnson and a true copy mailed to the Washington State Board Against Discrimination, General Administration Building, Olympia, Washington, within five days after this order is served on respondent.

(2) Mr. J. M. Wheeler will advise all employees in his shop in writing of the Washington State Law Against Discrimination and of each such employee's responsibility for making the law meaningful and effective. A copy of this notification signed by all employees will be forwarded by mail to the Washington State Board Against Discrimination, 1411 Fourth Avenue Building, Seattle, Washington. This paragraph shall apply to present employees in Wheeler's barber shop and shall apply for a period of one year from the date this order is served on respondent to all future employees in any barber shop operated or owned by J. M. Wheeler.

(3) Mr. J. M. Wheeler will post and maintain in a conspicuous place in his barber shop, where customers entering the shop may easily see it, a copy of a poster, furnished by the Washington State Board Against Discrimination, stating that this is a place of public accommodation subject to the Washington State Law Against Discrimination and that all persons are entitled to be served under the same uniform terms and conditions, regardless of race, creed, color or national origin. The poster will be maintained for a period of not less than one year from the date this order is served on respondent.

Mr. Wheeler appealed to the Superior Court of Spokane County. The superior court sustained the order and appeal to this court followed.

On appeal Mr. Wheeler makes two principal contentions: (1) The order compelling him to send to the Board copies of the letter to Mr. Johnson and the written notification to his employees violates the self incrimination and due process provisions of the fifth and fourteenth amendments to the U.S. Constitution and Const. art. 1, §§ 3 and 9; (2) the order compelling him, as a barber, under threat of criminal sanction, to serve customers regardless of their race, creed, color, or national origin amounts to involuntary servitude and violates the thirteenth amendment to the U.S. Constitution and the Federal Anti-Peonage statute (14 Stat. 546, 42 U.S.C. § 1994 (1964)).

We cannot agree with appellant's first contention. The pertinent statutory provisions (RCW 49.60.250 and 49.60.310), ³ upon which the Board's order and appellant's contention are in part predicated, do not purport to penalize him for failure to affirmatively report his own 'crimes,' I.e., his past or future noncompliance with the law against discrimination. Rather the penalty for noncompliance, if any arises from his failure to report as directed by the order, basically and necessarily must spring from a willful failure or refusal on his part to conduct his business on a nondiscriminatory basis. The Board's order, therefore, does not compel him to incriminate himself, and the statute does not purport to punish him for refusing to give evidence against himself. Indeed, in this latter respect RCW 49.60.150, ⁴ indirectly, if not directly, provides immunity to one who is required by the Board to submit self-incriminatory evidence.

Neither appellant nor amicus curiae have furnished any authorities which hold that an order of this type violates the constitutional privilege involved.

The appellant cites Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), which holds that a person may not be compelled to give answers which would furnish a link in the chain of evidence needed to prosecute. He does not advise us, however, what link would be supplied by his report of compliance with the Board's order.

Amicus curiae relies heavily on Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). That case is clearly distinguishable. The petitioners there protested that if they registered as members of the Communist Party these admissions could be used against them in prosecutions under the Smith Act (18 U.S.C. § 2385 (1964)) or under § 4(a) of the Subversive Activities Act, 64 Stat. 991, 50 U.S.C. § 783(a) (1964), to mention only two federal criminal statutes. The United State Supreme Court found merit in this contention because the very membership in the party which they were required to report constituted the substance of the crimes under those statutes.

But an analogous situation does not exist here. Compliance with the Board's order does not subject the appellant to any liability or penalty. On the contrary--it exonerates him. If he were required to report noncompliance, a different question might arise.

In passing, it should be observed that the National Labor Relations Act (29 U.S.C. § 160(c)) contains language comparable to RCW 49.60.250 with respect to requiring compliance reports. Although the parties have furnished us with no authorities construing or applying the pertinent language of the National Labor Relations Act, it is interesting to note that the United States Supreme Court and some circuit courts have approved orders entered by the National Labor Relations Board requiring the posting and mailing of certain 'cease and desist' statements. Cf. NLRB v. Falk Corp., 308 U.S. 453, 60 S.Ct. 307, 84 L.Ed. 396, (1940); NLRB v. Express Publishing Co., 312 U.S. 426, 85 L.Ed. 930, 61 S.Ct. 693 (1941); NLRB v. American Laundry Mach. Co., 152 F.2d 400 (2d Cir. 1945); NLRB v. Clark, 176 F.2d 341 (3d Cir. 1949).

Also somewhat analogous is the requirement of reporting income for income tax purposes. In the case of United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927), it was contended that the requirement of a report forced the defendant to incriminate himself. Of this contention, the United States Supreme Court observed, at 263, 47 S.Ct. at 607:

As the defendant's income was taxed, the statute of course required a return. See United States v. Sischo, 262 U.S. 165, 43 S.Ct. 511, 67 L.Ed. 925. In the decision that this was contrary to the Constitution we are of opinion that the protection of the Fifth Amendment was pressed too far. If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer's circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. United States ex rel. Vajtauer v. Commissioner of Immigration, (January 3, 1927) 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560. In this case the defendant did not even make a declaration, he simply abstained from making a return.

For the reasons stated, we find no constitutional disability of the nature urged by appellant in either our statutory provisions or the Board's order in this case.

By his second assignment of error Mr. Wheeler challenges the order directing him, as a barber, to furnish tonsorial services to customers regardless of their race, creed, color, or national origin. He contends this amounts to involuntary servitude and violates the thirteenth amendment to the U.S. Constitution and the Federal Anti-Peonage statute.

We find no merit in this contention.

RCW 49.60.040 defines a place of public accommodation as...