Mulkey v. Reitman

Decision Date10 May 1966
Docket NumberL.A. 28360
Citation64 Cal.2d 529,413 P.2d 825,50 Cal.Rptr. 881
CourtCalifornia Supreme Court
PartiesLincoln W. MULKEY et al., Plaintiffs and Appellants, v. Neil REITMAN et al., Defendants and Respondents

David R. Cadwell, Santa Ana, A. L. Wirin, Fred Okrand, Los Angeles, Joseph A. Ball, Long Beach, and Herman F. Selvin, Los Angeles, for plaintiffs and appellants.

John F. Duff, San Francisco, Richard G. Logan, Oakland, Cyril A. Coyle, Sacramento, James S. DeMartini, Thomas Arata, Santa Rosa, William J. Bush, Peter J. Donnici, James T. McDonald, Richard B. Morris, San Francisco, Brundage &amp Hackler, Charles K. Hackler, Julius Reich, Los Angeles, Richard A. Bancroft, San Francisco, Jack Greenberg, New York City, Robert M. O'Neil, Berkeley, Duane B. Beeson, Seymour Farber, Robert H. Laws, Jr., Howard Nemerovski, John G. Clancy, Ephraim Margolin, San Francisco, Joseph B. Robison, New York City, and Sol Rabkin, New York City, as amici curiae on behalf of plaintiffs and appellants.

Gibson, Dunn & Crutcher, William French Smith, Samuel O. Pruitt, Jr., Charles S. Battles, Jr., Los Angeles, and Richard V. Jackson, Santa Ana, for defendants and respondents.

PEEK, Justice.

Plaintiffs appeal from a summary judgment entered upon the granting of a motion therefor in an action for relief under sections 51 and 52 of the Civil Code. 1

In the trial court proceedings allegations of the complaint were not factually challenged, no evidence was introduced, and the only matter placed in issue was the legal sufficiency of the allegations. The motion for judgment, therefore, properly should be designated as one for judgment on the pleadings and will be so treated on appeal. In any event the allegations of the complaint stand as admitted for our purposes. (See Davis v. City of Santa Ana, 108 Cal.App.2d 669, 685, 239 P.2d 656.)

Plaintiffs' complaint sets forth that they are husband and wife, citizens of the United States and residents of the County of Orange; that they are Negroes; that defendants are the owners and managers of a certain apartment building in Orange County; that in May 1963 at least one apartment therein was unoccupied and was being offered by defendants for rent to the general public; that plaintiffs offered to rent any one of available apartments and were willing and able to do so; that defendants refused to rent any of the available apartments to plaintiffs solely on the ground that plaintiffs were Negroes; that because of such refusal plaintiffs were unable to rent a suitable place to live; that they suffered humiliation and disappointment and endured mental pain and suffering; that defendants will continue to refuse to rent to plaintiffs and other members of their race solely on the ground of such race unless restrained by order of the court; that plaintiffs have no adequate remedy at law because the discrimination practiced by defendants is also practiced by other real estate brokers, and home and apartment landlords and owners in Orange County.

The motion for judgment was made and granted solely on the ground, as stated by the trial court, 'that the passage of Proposition 14 has rendered Civil Code Sections 51 and 52 upon which this action is based null and void.' The reference is to the initiative measure which appeared as Proposition 14 upon the statewide ballot in the general election of 1964. Following its approval by the voters it was incorporated into the California Constitution as article I, section 26.

Plaintiffs unsuccessfully opposed the motion on the ground that article I, section 26, is void for constitutional reasons under both the state and federal Constitutions. This contention presents the sole question on appeal.

Proposition 14, as now incorporated into the California Constitution, provides in full as follows:

'Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.

"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 14 1/2 of this Constitution, nor to the renting or providing of any accommodations for lodging purpose 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 force and effect. To this end the provisions of this Article are severable.' (Cal.Const., art. I, § 26.)

For reasons which hereafter appear we do not find it necessary to discuss claims of the unconstitutionality of article I, section 26, based on California constitutional provisions and law. Our resolution of the question of constitutionality is confined solely to federal constitutional considerations. We note preliminarily that although we are examining a provision which, by its enactment by ballot, has been accorded state constitutional stature, the supremacy clause of the United States Constitution nevertheless compels that section 26, like any other state law conform to federal constitutional standards before it may be enforced against persons who are entitled to protection under that Constitution. (See Lucas v. Forty-Fourth Gen. Assembly of State of Colorado, 377 U.S. 713, 736--737, 84 S.Ct. 1459, 12 L.Ed.2d 632.)

A state enactment cannot be construed for purposes of constitutional analysis without concern for its immediate objective (In re Petraeus (1939) 12 Cal.2d 579, 583, 86 P.2d 343; see Griffin v. County School Board, 377 U.S. 218, 231, 84 S.Ct. 1226, 12 L.Ed.2d 256), and for its ultimate effect (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 880, 31 Cal.Rptr. 606, 382 P.2d 878; Gomillion v. Lightfoot (1960) 364 U.S. 339, 341--343, 81 S.Ct. 125, 5 L.Ed.2d 110; Avery v. State of Georgia (1953) 345 U.S. 559, 562, 73 S.Ct. 891, 97 L.Ed. 1244; Near v. State of Minnesota (1931) 283 U.S. 697, 708--709, 51 S.Ct. 625, 75 L.Ed. 1357). To determine the validity of the enactment in this respect it must be viewed in light of its historical context and the conditions existing prior to its enactment. (Select Base Materials v. Board of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672; Evans v. Selma Union High School Dist. (1924) 193 Cal. 54, 57--58, 222 P. 801, 31 A.L.R. 1121; see Snowden v. Hughes (1944) 321 U.S. 1, 8--9, 64 S.Ct. 397, 88 L.Ed. 497.)

In 1959, the State Legislature took the first major steps toward eliminating racial discrimination in housing. The Unruh Civil Rights Act (Civ.Code, §§ 51--52) prohibited discrimination on grounds of 'race, color, religion, ancestry, or natural origin' by 'business establishments of every kind.' On its face, this measure encompassed the activities of real estate brokers and all businesses selling or leasing residential housing. (See Lee v. O'Hara (1962) 57 Cal.2d 476, 20 Cal.Rptr. 617, 370 P.2d 321; Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 20 Cal.Rptr. 609, 370 P.2d 313.)

At the same session the Legislature passed the Hawkins Act (formerly Health & Saf. Code, §§ 35700--35741) that prohibited racial discrimination in publicly assisted housing accommodations. In 1961 the Legislature broadened its attempt to discourage segregated housing by enacting proscriptions against discriminatory restrictive covenants affecting real property interests (Civ.Code, § 53) and racially restrictive conditions in deeds of real property (Civ.Code, § 782).

Finally in 1963 the State Legislature superseded the Hawkins Act by passing the Rumford Fair Housing Act. (Health & Saf.Code, §§ 35700--35744). The Rumford Act provided that 'The practice of discrimination because of race, color, religion, natural origin, or ancestry * * * is declared to be against public policy' and prohibited such discrimination in the sale or rental of any private dwelling containing more than four units. The State Fair Employment Practice Commission was empowered to prevent violations.

Proposition 14 was enacted against the foregoing historical background with the clear intent to overturn state laws that bore on the right of private sellers and lessors to discriminate, and to forestall future state action that might circumscribe this right. In short, Proposition 14 generally nullifies both the Rumford and Unruh Acts as they apply to the housing market.

Prior to its enactment the unconstitutionality of Proposition 14 was urged to this court in Lewis v. Jordan, Sac. 7549 (June 3, 1964). In rejecting the petition for mandamus to keep that proposition off the ballot we stated in our minute order 'that it would be more appropriate to pass on those questions after the election * * * than to interfere with the power of the people to propose laws and amendments to the Constitution and to adopt or reject the same at the polls. * * *' But we further noted in the order that 'there are grave questions whether the proposed amendmen...

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