HUNTER v. ERICKSON
Legal provision: Equal Protection
Argument of Robert L. Carter
Chief Justice Earl Warren: Number 63, Nellie Hunter, appellant versus Edward O. Erickson, Mayor of the City of Akron, et al.
Mr. Robert L. Carter: If the Court please.
This case is here on appeal from the judgment of the State of Ohio which construed as consistent with the Constitution of the United States a charter amendment to the City of Akron.
The amendment is number 137 and then set out at page 37 of our record.
And this charter amendment requires that before any legislation designed to regulate housing, real property on the basis of race is enacted that it has to be approved by majority of the electorate.
Moreover, it asserts that any legislation which had been adopted with this making this regulation would cease to be effective until approved by the majority of the electorate.
The -- we contend that Section 137 is inconsistent with the Fourteenth Amendment requirements and must fall.
The facts are not in dispute and are reasonably uncomplicated.
In July of 1964, the City Council of Akron enacted a fair housing ordinance.
It made findings of fact that it had certain of its citizens were required to live in segregated conditions and under unhealthy and unsanitary and unsafe conditions because of housing discrimination.
And these kinds of discrimination produced various social evils which were addressed to the health and well-being of the city.
It therefore established the Commission with power to investigate on complaints of housing discrimination and to make findings and to order compliance with the relief of the discrimination.
It also directed the city -- the director of -- the law director of the city to take appropriate action when the order of the Commission was not followed.
All housing was covered by this.
All housing that was intended as residential housing was covered by this ordinance.
The -- on August the 23rd, petitions were filed pursuant to in the initiation process which is provided by the city charter and pursuant to that, a sufficient number of signatures were secured and the petition 137 went on the ballot.
It was voted upon at the November 23, 1964 Election and it was adopted by majority of citizens.
Chief Justice Earl Warren: What number of signatures were required for it, initially?
Mr. Robert L. Carter: It's 7% of the electorate vote so that it varies from time to time but in any event, the City Council indicated that the requisite number of signatures had been secured and placed it on the ballot.
Justice William J. Brennan: Was there a large number of votes Mr. Carter in election itself?
Mr. Robert L. Carter: In the election itself, I think that there were about 100,000 votes.
Justice William J. Brennan: What proportion is that on?
Mr. Robert L. Carter: With that I don't know.
I know that the charter was adopted by a vote of something like 69,000 to 44,000.
In January of 1965, the appellant filed a complaint, made a complaint of housing discrimination and requested the Commission which had been set up pursuant under this ordinance to act.
The Commission refused to act and she then went to the law director.
The law director refused to act and these proceedings therefore commenced.
After those, some various procedural problems involved and they were cleared away which I don't think it's germane to this -- to the argument of this appeal and then the matter was defended and pressed on the merits and on the merits, the city defended and said that the ordinance was no longer active because of the -- this amendment Section 137 which I have indicated.
The Ohio Supreme Court held that the 137 was a classification but it contended that it was reasonable because it says that a city in singling out housing -- racial regulation of housing on racial grounds for special treatment is not acting arbitrarily because of the fact that this is a highly emotional field and therefore it indicated that this was a reasonable judgment.
We contend that under the decisions of this Court that opinion of the Supreme Court of Ohio cannot stand is inconsistent with the opinion of this Court.
And we --
Justice Byron R. White: Mr. Carter the law was suspended by the charter provision, I gather.
Mr. Robert L. Carter: Yes, sir.
Justice Byron R. White: And then how would it have been -- would it have -- could it have been approved with the City Council.
Would the City Council have to pass it again?
It was submitted or could it have been done by initiative?
Mr. Robert L. Carter: It could've been done either way.
As I understand the process, the law was suspended.
City Council could have either by initiative.
It could have gotten on the ballots.
Or the City Council could have resurrected it and put it on the ballot again in which point it would have been voted upon.
Justice Byron R. White: There was no -- in the charter amendment, there was no automatic provision for getting it on the ballot?
Mr. Robert L. Carter: No, sir.
Because as a matter of fact, the -- not only was there no automatic provision but the provision was that it had to be put on the ballot at the general or regular election.
Justice Byron R. White: Has it ever been put on the ballot?
Mr. Robert L. Carter: The last -- this past election was put on the ballot.
Justice Byron R. White: How was it put on?
Mr. Robert L. Carter: It was put on by the City Council?
Justice Byron R. White: By what?
Mr. Robert L. Carter: By the City Council.
Justice Byron R. White: And did it pass?
Mr. Robert L. Carter: No, it did not.
Justice Byron R. White: Now, what was the vote on?
Mr. Robert L. Carter: It was a close vote.
The vote was 44,000 some to 44,000.
Justice Byron R. White: Was it to be identical or --
Mr. Robert L. Carter: Yes.
What was -- what was put on the ballot was a whether or not -- whether it would put to pass in city, whether or not they would keep or repeal 137.
And I might --
Justice William J. Brennan: It was to keep or repeal?
Mr. Robert L. Carter: Keep or repeal.
Justice William J. Brennan: 137?
Mr. Robert L. Carter: 137.
Justice William J. Brennan: Then the open housing ordinance itself has not been voted on, is that it?
Mr. Robert L. Carter: No, the open housing ordinance -- what the effect of repealing of 137 would be to resurrect.
Justice William J. Brennan: Well, what I'm trying to get at is -- I gather if 137 is constitutional and valid then the only way the open housing ordinance can ever become operative is that it go on the ballot to be approved under 137 and that is not what was submitted at this past election.
Mr. Robert L. Carter: Which I understand.
Justice William J. Brennan: Well, has it ever been submitted?
Mr. Robert L. Carter: The -- the city housing ordinance has not been submitted to the voters.
But the issue that we have here was submitted.
In other words, whether or not --
Justice William J. Brennan: Well, the repealer of 137.
Mr. Robert L. Carter: Yes, sir.
Justice William J. Brennan: But may I get back to Mr. Justice White asked you earlier?
Mr. Robert L. Carter: Sure.
Justice William J. Brennan: Now, how do you get under 137 the open housing ordinance to a vote?
Mr. Robert L. Carter: You get the open housing ordinance to a vote by having the City Council re-pass the law and then it's submitted within 30 days by referendum and it's placed on the ballot at a general or regular general election which then this process requires 10% of the voters to act.
Or voters may initiate a fair housing ordinance with 77%, they would be able to put a petition with the same fair housing ordinance by initiation 7%, get that on the ballot and would be voted.
Justice Abe Fortas: Now, does she have a -- does petitioner here have a -- an appellant here have a remedy under a state law that was passed subsequent to the events of this litigation?
Mr. Robert L. Carter: There is a -- no, sir.
In fact, there is a state law.
Justice Abe Fortas: When was that enacted?
Mr. Robert L. Carter: The state -- all I can concert sir is that the law was enacted subsequent to the institution of this case.
I think it was passed --
Justice Abe Fortas: October 30, 19 -- effective October 30, 1965, there was a state law enacted that was some time after the institution of this litigation.
Now, would you mind telling us your view as to the bearing of the state law on this case?
Mr. Robert L. Carter: That I can approach it in several angles.
State law that's enacted is -- deals chiefly with commercial housing.
In other words, the right to live in a house and to -- for residential properties is now specifically covered by the state law.
In some respects it is.
In other words, there's advertising and things of that kind.
The state law also is not as broad as this law.
This is a broad provision.
It covers all residential housing.
It has a commission with power and a commission can order the compliant.
State law is a much weaker provision and I think that as the Court say in Jones versus Mayer Company, the issue here it seems to me is that the state law does not displace the local initiative or the local --
Justice Abe Fortas: Mr. Carter.
Mr. Robert L. Carter: -- or fair housing legislation.
Justice Abe Fortas: Excuse me, Mr. Carter, but --
Mr. Robert L. Carter: Sure.
Justice Abe Fortas: -- your adversary on page 2 of his brief says that the Ohio Code was amended to make unlawful certain discriminatory practices in both commercial and residential property and to provide the Ohio Civil Rights Commission with the enforcement powers.
Now, my specific question to you has to be this.
Does this law, the state law enacted after the commencement of the litigation provide a remedy for the specific complaint of your client?
Mr. Robert L. Carter: My -- my contention is that it does not.
The state law is set out in the appellant's brief -- in the appellant's brief on the merits, at page 10 and the refusal if you will note, of the unlawful discrimination territory practices, the refusal to sell, transfer, assign, rent, or lease and so forth is it goes only to commercial houses.
There are some provisions in the law that the statute does -- that covers personal residence but it does not cover the fact of renting or moving into residence.
There is some issue here by the refusal to lend money, the advertising and so forth.
But it does not have any right to actually occupy personal residence.
Justice Byron R. White: Well would the appellant have ever remedy either one of the 1966 statute or 1968?
Mr. Robert L. Carter: The appellant would --
Justice Byron R. White: Notwithstanding the Court.
Mr. Robert L. Carter: The appellant would have a remedy under the -- a general remedy under the 1982, under Jones versus Mayer but they would not have the remedy of the Government administrative machinery which is provided by this ordinance plus the fact that --
Justice Byron R. White: You mean, you wouldn't have the 1968 statute --
Mr. Robert L. Carter: The 1968 statute does not apply to this kind of housing at this time.
Justice Byron R. White: But you would have under 1982.
Mr. Robert L. Carter: It should have a general remedy which I think that this Court indicated in Jones versus Mayer Company that even though the 1968 Act provided administrative machinery that as a matter of fact, the -- it's the 1866 law did not displace it because of the fact that it was a general remedy which -- and this -- what this provided was administrative machinery to effectuate the right which had been granted.
We think that this case is more of a violation as a matter of fact than Reitman versus Mulkey because of the fact that what occurs here in Reitman versus Mulkey, the proposition 14 could have been seen as being neutral because it didn't have -- it had nothing on the face of it which would indicate that this was a racial matter.
This in this case, on the face of the statute and explicitly of the state of the statute it is said that no race regulations can be passed without the vote of the people and we think that this is an explicit race regulation which makes this even a stronger case than in the Reitman versus Mulkey because of the fact that it does involve and explicitly involved the Government's hand in the process of maintaining and supporting racial discrimination.
We also contend that this can't be looked upon as a mere repeal of the law.
It's the state were being neutral.
What happened here is that Negroes to those for whom the legislation, this kind of legislation is needed and intended are now put to a greater test, are now put to a greater burden to get legislation enacted.
They're not in the same position as they were before the fair housing law was passed.
What they must do now is that they must not only convince the City Council which they had to do at the first instance to enact a new law.
But they also have to convince, they have to go out and get signatures, they have to get 7% or 10% of the population to sign and that what they also must do is to convince the majority of the electorate that this kind of legislation should be enacted.
Justice Potter Stewart: Mr. Carter, as I had understood your argument, it would -- you would be making substantially the same attack on Section 137 whether or not there had previously been any fair housing legislation enacted, would you not?
Mr. Robert L. Carter: I think so.
Justice Potter Stewart: I think so.
Alright, so I understand your argument.
Mr. Robert L. Carter: I think so.
I -- I think I would be because I think that essentially what would be occurring is that if 137 were enacted without --
Justice Potter Stewart: Without a housing history.
Mr. Robert L. Carter: All it would mean would be of course under the circumstances that I would not be able to show that the group had been succeeded in getting a fair housing legislation through the City Council.
Justice Potter Stewart: But that really doesn't affect the -- your basic constitutional attack on 137, does it?
Mr. Robert L. Carter: Well, the only thing I do say is that the issue, it does seem to me that may sharpen up the issue somewhat.
Because what was involved in Reitman versus Mulkey, the question was whether this -- whether or not this was a repeal of the law and the issue before the Court that the Court felt was an issue if they have to ponder was the fact that whether once you had legislation of this kind, that the Constitution for it has been repealed.
Now, in this particular instance, it seems to me that the issue is presented even more sharply, I think that --
Justice Potter Stewart: As I understand your argument, it's really a different issue.
This is isn't Reitman against Mulkey.
Mr. Robert L. Carter: Oh, I think it is.
I think that the Reitman versus Mulkey -- I think that the Reitman versus Mulkey covers this case.
I think Reitman versus Mulkey covers this case and as I think Mr. Justice Stewart, I think as a matter of fact as I said I think it's even stronger case --
Justice Potter Stewart: Well, --
Mr. Robert L. Carter: -- than Reitman versus Mulkey.
Justice Potter Stewart: Four members of the Court dissented Reitman against Mulkey and it may be that if your argument had addressed itself to the point that this may be a different case, it might help you.
Mr. Robert L. Carter: Well --
Justice Abe Fortas: You'd like to have five anyway wouldn't you?
Mr. Robert L. Carter: I didn't hear it.
Justice Abe Fortas: You'd like to have five anyway.
Mr. Robert L. Carter: I didn't hear you sir.
Justice Abe Fortas: You'd like to have five members of this Court anyway.
Mr. Robert L. Carter: Well, I certainly would under any combination.
Justice Potter Stewart: Mr. Carter, do I understand correctly that the Akron charter also provides that before any tax ordinance can be enacted that there has to be a vote of the people?
Mr. Robert L. Carter: The respondent raises that on the theory --
Justice Potter Stewart: You raise it.
You raise it in your brief by saying that there is no other kind of legislation that's requires this sort of a vote and they respond by saying you're mistaken that the tax legislation does require.
Mr. Robert L. Carter: I agree.
Justice Byron R. White: Is that the law?
Mr. Robert L. Carter: I beg your pardon?
Justice Byron R. White: Is that the law?
Mr. Robert L. Carter: No, that -- I don't believe that that can even make -- can sustain that exception.
Let me tell you what the tax legislation is.
Tax legislation says that 86 (a) to the charter says that there can be no -- the aggregate amount that may be levied on real property in any given year has to be at a certain specified limitation and if that limitation can be exceeded, it can be only be exceeded with the vote of the people.
There also is a provision in 86 (b) which says that income taxes that are levied were that income taxes being levied will only last until 1968, 1963 to 1968 and that if it is to be extended, it has to be by the vote of the people.
Now, it's my contention that the property tax is not.
It does not meet this question because what the property tax limitation is, is that taxes in favor of property owned.
It is not an invidious discrimination.
What it says is that you cannot -- the City Council is being told that you may not tax property owners beyond a certain limitation without the full approval of the people, so that what we have here is the beneficial law for a certain group of class of citizens which they have enabled because of their strength to keep the City Council from moving alone.
The income tax provision on the other hand is a provision which is general and neutral and all of the people of the city said is in terms of income tax, they're experimenting with it apparently and they indicate that we're not going to allow you to extend it without our approval.
We don't believe that this helps the respondents to answer to our question to our case.
In our case, in our argument, we still contend that 137 is invidious.
In -- in view of the fact that what it says to the City Council is that you may not pass any law to the benefit, in terms of housing discrimination for the class of people that need it without the approval of the entire electorate.
Justice Potter Stewart: Am I also right in my understanding Mr. Carter that any ordinance passed by the City Council of Akron unless it's an emergency ordinance which requires more than a simple majority but that any ordinance passed is subject to a referendum?
Mr. Robert L. Carter: Any ordinance that is passed is --
Justice Potter Stewart: That does not have an emergency clause.
Mr. Robert L. Carter: Any ordinance that is passed is subject to a referendum.
Justice Byron R. White: But only if it's put to referendum by initiative.
Mr. Robert L. Carter: Oh, yes.
Something only if it's put to referendum by initiative is not required to go to referendum.
Justice Potter Stewart: But anybody can --
Mr. Robert L. Carter: And if they get the --
Justice Potter Stewart: -- the adequate number of people can.
Mr. Robert L. Carter: But this also does not meet the problem because of the fact that the initiative and referendum of any ordinance need not be at a general or regular or general election which is required by 137.
If an Act is passed, the initiative or referendum may be initiated any kind of election and may be initiated in a special election.
So that what we have here is that even to that extent what 137 has done is to freeze and clog the political process against the enactment of law that's favorable in terms of the removal explanation.
Now, we think that this law is bad because we've indicated in our brief because what it does is that it discriminates.
Clearly, it's a racial classification and it discriminates clearly against the people who need the legislation most.
Justice Potter Stewart: What part of the Fourteenth Amendment were you relying upon, the Equal Protection Clause?
Mr. Robert L. Carter: Equal Protection Clause, yes.
It's our contention that the legislation such as this which discriminates against groups of citizens as this does that under the decisions of this Court that as this statute has been construed as being a reasonable classification that it has to have a heavier burden that what the state would have to show in order to sustain this under the Fourteenth Amendment would be that this would be a regulation which was absolutely necessary for the City of Akron to meet a various of its valid objectives that it had a right to pursue.
Justice John M. Harlan: According to this legislation, neutral on its face, not any particular race, what can you say then?
Mr. Robert L. Carter: If the legislation were neutral on its face, what I would have to show Mr. Justice Harlan would be the fact that it's a fact.
If I could show in effect that it discriminated it as a matter of fact against classes of citizens, I think I would have the same argument.
The point here however is that I don't have to -- the voters have kept us from being concerned about interpretation.
They specifically and explicitly and expressly indicated precisely what the statute was meant to accomplish.
Justice Byron R. White: Well, you just -- are you just saying that the legislation is bad on its face because it has a racial classification?
Mr. Robert L. Carter: I --
Justice Byron R. White: Is that in the end of your argument?
Mr. Robert L. Carter: I said that it's bad on its face because it has a racial classification and therefore is subject to stricter standard.
Secondly, it of course in effect, it doesn't affect the discrimination --
Justice Byron R. White: When would a racial classification ever be permissible?
Mr. Robert L. Carter: A racial classification as I understand --
Justice Byron R. White: Do you think a racial classification is justifiable?
Mr. Robert L. Carter: As I understand the decisions of the court, the decisions of the Court in McLaughlin and Loving have left open the possibility of the Court approving a racial classification.
The court says -- the court said however --
Justice Byron R. White: Well, what's your position on it because if you --
Mr. Robert L. Carter: I didn't hear you.
Justice Byron R. White: What is your position on it?
I would suppose your argument would be one way if any racial classification is bad per se, you could just stop there.
Mr. Robert L. Carter: The --
Justice Byron R. White: But do you think it is or not?
Mr. Robert L. Carter: The racial class -- an invidious racial classification it seems to me is one of course in which I would feel that the Constitution reach and I think --
Justice Byron R. White: Is that redundant?
Is that a redundant statement?
Mr. Robert L. Carter: Well, I don't think so but I think this is why this Court has said because of the fact that there might be racial classifications or legislation made to benefit certain groups of people under certain needs, needs which they have, which this Court left open in both Loving and in McLaughlin versus Florida.
If the fact that they are not ruling that race classifications per se open.
Justice Byron R. White: So you do have to go beyond the face of the statute?
Mr. Robert L. Carter: You have to go -- well, the first thing, it seems to me Mr. Justice White is that you go to the face of the statute.
If I have a race classification, what I say by the race classification is that reasonableness is not enough.
I think that once you see that the statute from that regard that this is the standard unless I understand that this Court has applied.
Once I see, you see a race classification as to whether you will approve race classification then you go to its effect to determine as a matter of fact whether the cost of occasion is necessary for an object that the state is entitled to pursue.
It seems to me --
Justice Thurgood Marshall: But don't we also -- don't we also have to take consideration to the atmosphere that this was aimed at the specific fair housing ordinance?
Mr. Robert L. Carter: Yes, sir.
And in fact that it was aimed at a specific fair housing ordinance and nullified or at least has set it aside.
Justice William J. Brennan: Tell me Mr. Carter, you look then you say for a justifiable state interest.
Now, what in this instance what's your standard, a compelling state interest to simply rational, which?
Mr. Robert L. Carter: It has to be a compelling state interest.
It has to be that one that the state can show is necessary.
Justice William J. Brennan: Well, we said compelling I think in First Amendment area but have we said that?
Mr. Robert L. Carter: In the race classifications, I think the term used is necessary for the pursuit of a --
Justice William J. Brennan: Is that different from compelling?
And is that what a greater burden on the state to say compelling rather than necessary?
Mr. Robert L. Carter: Well, I would not -- I think that I would not think so but I'm not really in the position to say in terms of the court.
Justice William J. Brennan: But in any event, you think necessary or compelling are different from mere rationality?
Mr. Robert L. Carter: That's right.
Justice Byron R. White: And would you say the desire to aid or to further the interest of a specific class of people would be necessary or compelling enough for racial classification?
Mr. Robert L. Carter: Well, it would appear to me Mr. Justice White that then in terms of its effect, of what the court will look to were to see whether or not what the state was aiming at.
It was an objective which was a legitimate objective aside from --
Justice Byron R. White: So it all has to be a legitimate objective --
Mr. Robert L. Carter: Of the state.
Justice Byron R. White: -- to justify state interest.
It doesn't have to be compelling.
Mr. Robert L. Carter: Well, it has -- it has to be compelled and it has to be necessary for a legitimate --
Justice Byron R. White: Why is it necessary to aid a specific group of people?
I mean it's compelling --
Mr. Robert L. Carter: Well, I'm not in the position to --
Justice Byron R. White: Well, perhaps you want to argue another case.
We'll give you some time.
Mr. Robert L. Carter: Alright.
Chief Justice Earl Warren: Mr. Claiborne.
Argument of Louis F. Claiborne
Mr. Louis F. Claiborne: Mr. Chief Justice, may it please the Court.
Perhaps first, I should say a word to explain the presence of the United States in this case which is perhaps another way of addressing myself to the question whether the case is moot or whether it's lost its practical importance because of the intervening passage of the state law of Ohio which Mr. Justice Fortas referred to or the federal law of both the 1866 Act that was recently been indicated in Jones and Mayer, or the Civil Rights Act of 1868.
It is our view that these intervening events do not in any technical sense make this case moot because they do not provide the remedy sought by this particular plaintiff in this case.
As Mr. Carter pointed out, the Ohio law does not reach a refusal to sell or to rent a private dwelling.
It does reach some discrimination by those engaged in lending or in advertising or in furnishing commercial services with respect to the sale of private housing but the fundamental complaint here that certain housing was unavailable to Mrs. Hunter is not a remedy which she can obtain under the Ohio law.
As for the new federal law of 1868 law, it does not as of now provide any remedy with respect to what I assume to be a single family house which is what Mrs. Hunter was looking for.
Indeed, it's not clear that the new federal law will ever provide a remedy against the kind of discrimination alleged here by the realtor.
Federal law does or will in a year from now provide a remedy against the realtor who misrepresents the availability of certain housing to a particular race or class but if he correctly represents the owner's desire not to sell it may not be a violation of the federal act.
The 1866 Act does cover the fundamental complaint here, in that it reaches all housing, indeed all property discriminations on the ground of race.
But it does not furnish any administrative remedy and that it seems to us is the importance of this case and of other cases like this no other law, neither the Ohio law nor either of the federal laws can give Mrs. Hunter what she wants.
What she wants is that the Akron, Ohio Commission, the local commission easily accessible to her on which sit local leaders committed by their local ordinance to eliminating racial discrimination in housing in their community, shall act, shall investigate and if necessary shall institute legal proceedings on the other hand to vindicate her right or right which she has quite independently under federal law, as well as under this local ordinance of Akron.
This is not an unimportant question.
The availability of a local remedy even today when there is a federal remedy.
Justice John M. Harlan: Is that commission still on this?
Mr. Louis F. Claiborne: The Commission as I understand it Mr. Justice Harlan was never fully activated because this amendment to the charter was passed relatively rapidly after the original housing ordinance was passed.
Justice John M. Harlan: The original commission?
Mr. Louis F. Claiborne: I think there is no commission.
Certainly, by now they wouldn't be an active commission.
However, the Commission is to be appointed by the mayor of the city and I assume it could be brought back into existence without the delay.
I don't think it's a problem about reactivating a commission should this case return for a remedy in that respect.
There's been a lot of talk about local handling of local problems and of course everyone would agree that that's the most desirable, the most salutary way of handling this and other problems in this area.
No federal law from Washington not even the federal courts sitting in the State of Ohio can afford the same affective relief as can a local commission administering its local ordinance.
It's an involvement of the local leaders as I've said.
It's the local commitment of the inhabitants who have themselves passed the supplementary law.
This is what the Federal Civil Rights Act of 1968 envisaged that they would be local laws, local remedies to supplement the federal right and of course that local commission is more readily accessible to those who were injured.
It's also important that the local communities not seem to be in conflict with the overriding federal law which of course applies in Akron as everywhere else.
But the appearance of conflicts which results from Akron's having a charter provisions which says to its city council, you may pass no law providing for fair housing but the elimination of discrimination on the ground of race in housing.
When the federal law forbids such discrimination, it creates confusion, it seems to tell citizens of that city that whereas Washington that is telling them you may not discriminate, their own vetoes, their own electorate is condoning it and that I'm only saying that this makes it important and not moot.
Justice Potter Stewart: I don't understand this argument at all.
No leaders in Akron are telling anybody else, and these are the voters of Akron.
The council has passed this legislation.
Mr. Louis F. Claiborne: The -- I should perhaps not have referred to leaders in the sense of political leaders presumably the political leaders as Your Honor points out had in fact by two-thirds vote passed this legislation.
Justice Potter Stewart: It passed it as an emergency ordinance.
Mr. Louis F. Claiborne: Which requires --
Justice Potter Stewart: It is not even subject to referendum.
Mr. Louis F. Claiborne: But now, nevertheless, the city as its charter, its most authentic law provides has put itself on the side of perpetuating the regime of laissez faire whereby freedom to discriminate on any ground specifically on the ground of race appears to be condoned.
Justice Potter Stewart: I don't --
Mr. Louis F. Claiborne: Now, that's not effective because there is a federal law which forbids it.
Justice Potter Stewart: But this is -- I don't understand how could you say but it appears to be condoned when it merely -- the charter merely provides that any legislation shall be subject to most democratic process of them all but not representative democracy but pure democracy.
Mr. Louis F. Claiborne: Well, Mr. Justice Stewart, it's not as though they were no law.
Akron has not been silent of the subject.
It has today in its organic charter a provision, the only amendment of the city charter of Akron as far as I can tell from the record which provides that on this one subject alone, that is discrimination in housing with respect to, on account of race, religion or ethnic origin.
The City Council is disabled from acting unless and until it obtains the approval of the entire electorate.
It seems to --
Justice Abe Fortas: Well, I'm having a little difficulty up here Mr. Claiborne.
I take it, you would not challenged the, or were you, the constitutionality of a referendum on which the focus on that would repeal the very specific ordinance de novo, would you say that that presents a -- it states a question under the Fourteenth Amendment?
Mr. Louis F. Claiborne: Depending on the effect of such a referendum, I think it would present substantial question.
I should say that there is a case pending in this Court involving that exact question and it may be questionable whether I should speak to that case rather than this one.
Justice Abe Fortas: What you mean is?
Mr. Louis F. Claiborne: That case involves the City of Toledo, Ohio.
Justice Byron R. White: You're talking about Holland --
Mr. Louis F. Claiborne: Holland versus -- it's pending on petition of certiorari.
But let me point out some differences --
Justice Abe Fortas: I thought, as I understand Mr. Carter, he was presenting this on a very different basis.
Perhaps I misunderstand but I thought he was presenting this on a following basis that here is in substance an overriding law which says that you can pass any kind to the City Council.
In Akron, you can pass any kind of housing legislation you want to by your ordinary processes but if it is housing legislation that relates to the problem of racial discrimination, you may not, you must first submit that to the voters.
It's my understanding of this argument that he says that that is a discrimination on racial grounds without a permissible object and that it therefore violates the Fourteenth Amendment perhaps specifically the Equal Protection Clause, is that your understanding of the argument?
Mr. Louis F. Claiborne: It's not only my understanding of the argument Mr. Justice Fortas but I entirely adopt it and approve it.
I was perhaps moving too slowly and had gotten that far.
Justice Abe Fortas: That would have no effect whatever.
That argument would have no effect whatever as I see it on the validity of a specific referendum designed which has the effect of repealing a specific ordinance passed by the City Council of Akron.
I mean to say that that argument it seems to me to be inapplicable because the referendum machinery is available with respect to all ordinances but here your case is being presented to us in a very different basis.
That is to say the basis of singling out a particular kind of housing legislation namely, legislation directed to racial discrimination and saying as to that specific type of housing legislation, there must be not only, there must be a special procedure, i.e. submission to the voters.
Mr. Louis F. Claiborne: I certainly agree Mr. Justice Fortas.
Perhaps I shouldn't take on the referendum case.
I simply and to be candid in answer to your question didn't want to suggest that there were no arguments, no arguments available here which wouldn't have some bearing on that case as well.
If the referendum has the effect as a practical matter or as a legal matter as is claimed in this other case of disabling the council in the indefinite future from then enacting any such fair housing ordinance and the effect in so far as placing a burden on the victims of discrimination in obtaining an effective remedy through the political process is exactly the same whether it's done by a referendum disapproval of an existing ordinance or whether it's done as here by an amendment to the city charter.
It is debated in the other case whether the referendum has this effect and it does not appear that if the case of Akron, the referendum of disapproval of this ordinance by a timely referendum would have inhibited the ouncil from re-passing the ordinance at a later term, that is legally inhibited the council from re-passing the ordinance in the later term.
But there is also the other difference which is that disapproval of an ordinance by referendum merely erases.
It does not put into the organic law what seems to be what used on its face a discriminatory provision explicitly grounded on race and of course would resort to the referendum is available with respect to all ordinances, not quite all ordinances in the case of Akron.
Whereas here, we have a tailor made provision dealing with only the subject of fair housing which is a plain discrimination against the beneficiaries of such laws.
Justice William J. Brennan: Now, I understand you Mr. Claiborne that if instead of putting 137 to initiative as they did, they had put a repealer of the open housing law to referendum by initiative, you're suggesting you might still be here with the equal protection argument but that you don't have to reach that question in this case, is that it?
Mr. Louis F. Claiborne: That's right, Mr. Justice Brennan, though I think that the resort to the initiative procedure or to the referendum procedure with respect to this ordinance, previous ordinance already passed which is available in a case might have had an injurious effect on the class --
Justice William J. Brennan: I -- I understand but --
Mr. Louis F. Claiborne: -- or the beneficiaries but that might be just too bad because we cannot control the political process to that extent.
Whereas here, an instrument was fashioned with the purpose and effect of placing at a very substantial disadvantage or as Professor Black has put in his article putting the life preserver out of convenient reach.
That was the purpose and effect of this amendment of the city charter which is --
Justice William J. Brennan: Incidentally, does that, that Toledo case raised the issue of putting the original open housing ordinance to referendum?
Mr. Louis F. Claiborne: It does.
Justice William J. Brennan: So this case needed to decide that necessarily?
Mr. Louis F. Claiborne: Not necessarily.
Now, I should point out and it's -- there was -- the answer given was that any ordinance was subject to referendum, that's not quite true.
The Toledo -- the Akron charter expressly forbids referendum on two important matters where the people are not to be trusted.
One is the question of current appropriations for the running of the city and the other is the appointment and removal of those whose jobs have been secured by the City Council.
It's interesting that when it comes to those matters, referendum is not --
Justice Potter Stewart: I don't think it's fair to say that people are the motivation behind that because the people are not to be trusted and I don't think you do Mr. Claiborne, neither that you can think about it.
Mr. Louis F. Claiborne: Well, I wasn't to be entirely serious Mr. Justice Stewart but there are some matters as to which the vagaries of the referendum process was intangible.
Justice Potter Stewart: The first area you gave involves the necessity for a promise in certitude and the second area, it's a non-legislative act.
Mr. Louis F. Claiborne: Well, perhaps so.
Now, let me just emphasize the thrust of our argument here.
It is that this amendment, the city charter has the undeniable affect of prejudicing the beneficiaries of this legislature of this type of legislation that is really not the main fold.
It also has the intended or unintended but nevertheless inevitable effect of encouraging or at least committing those who engage in this discrimination by assuring them that the likelihood of the passage of such an ordinance is more remote than it was before and that things will remain as they offer reasonably long time.
All of this might be beyond constitutional challenge if it resulted from the normal political process.
Here, it results on the contrary from an action which narrows not enlarges the avenues of political relief.
We do have here a clogging of the political process.
Normally, legislation can be passed either by the council or by the process of initiative or by combination of both through the submission to referendum.
With respect to this one area, the council is not to be trusted especially since they demonstrated there our willingness to pass this fair housing legislation by two to three vote.
Therefore, the avenue of relief normally available through the elected representatives is no longer available.
That has been shut off.
The only way in which fair housing legislation can now be enacted accurately is through the cumbersome and quite unusual procedure of either initiative that's practical or theoretical a re-passage of this ordinance and an automatic referendum thereafter.
Justice Byron R. White: And you think -- and you suggest that it is not a sufficient reason to want the voice of the majority of the people on a something that they think is important to them.
Mr. Louis F. Claiborne: We of course do not challenge or in any way question the desirability of obtaining the approval or the voice of the electorate on any matter.
We do think that singling out this particular matter indicates that this is not a feeling by the citizenry of Akron that it ought to resort to pure democracy but rather a tailor-made device which happens to work very well because those who were affected are minority and their voice will be more effectively ground out when the unabated rule of majority is allowed to prevail.
Justice Byron R. White: This is just something a majority can't do.
Mr. Louis F. Claiborne: I think -- I suggest they can do it by initiative or by referendum but they cannot do it in this way.
This way does carry with it both some consequences and the flavor which has practical impact of this being an area when neutrality is mandated unless the city is to go forward and eliminate discrimination.
It has but two choices: to combat discrimination or to remain scrupulously neutral with respect to it.
That is very difficult to do and yet and saying it and yet speak on the subject to remain scrupulously neutral and not on the other direction.
It seems to us here that Akron has said too much to be properly characterized as neutral.
Chief Justice Earl Warren: Mr. Vinopal.
Argument of Alvin C. Vinopal
Mr. Alvin C. Vinopal: Mr. Chief Justice, members of the Court, counsel.
Our position here has three phases.
I'm briefly going to touch on the subject of mootness, then I'm going to talk about where we stand with respect to Reitman and then I intend to talk some about the classification.
Now, with respect to mootness, it seems to me to start with and unless my friends on the other side here feel that the people of Akron will refuse to obey the state or the federal law that if that's their argument then perhaps we shouldn't be here at all but I don't think Akron are that kind of people.
They obey the state and federal law.
Now, as to this particular specific complaint, both of the state and the federal law do cover it because if you will observe my appendix B in my brief, this is a complaint relating to the activities of a real estate agent and that is covered, that proposition is covered by both of the laws.
That was really the basic purpose in the sense as I see it for the state and federal law.
And along that line, I begin to thinking a little bit about it and I look in the Sunday classification ads, just the Sunday before I came down here as to advertisements with respect to the sale and rental of real estate and I was amazed to find that of some close to 500 listings, 448 of them were listings by real estate people and only 15 or 20 were listings by individuals.
In my own observation is that my travels through the City of Akron, I have yet to see a sign where like it used to be Alvin Vinopal wants to sell his house.
It's -- this is relates the regulation of a business, a vast business, namely the real estate business as well as the banking business in certain areas as I will come to.
Now, the other aspect of the question of the mootness here is that Nellie Hunter anyway would hardly be involved in this complaint to find a house because she's now living in Chicago.
And the other aspect about the fact that we have the state and the federal law as well as the Jones doctrine under the state and federal act, the ultimate complaint of a commission whatever may be ultimately ends up in the Common Pleas Court of the county where the individuals are located if they have the state law while the state can take over if they do or the city can take over.
And so you get right --
Justice Abe Fortas: Does the record before us show -- does the record before us show that Mrs. Hunter lives -- now lives in Chicago?
Mr. Alvin C. Vinopal: Well, I'll grant you.
It doesn't show there, I'm referring to a newspaper article about the subject in discussing that counsel.
It isn't in the record.
I would say that but a reason this newspaper article, this subject has been covered quite --
Justice Abe Fortas: Well, I have problems about that.
Mr. Alvin C. Vinopal: I beg your pardon?
Justice Abe Fortas: As I have problems about going outside of the record or something of that sort.
Mr. Alvin C. Vinopal: Sorry, I didn't mean to --
Justice Potter Stewart: Well, you're in distinguished company Mr. Vinopal, I think in -- by the justices of this Court yesterday in a very analogous situation pointed out that the --
Mr. Alvin C. Vinopal: Thank you.
Justice Potter Stewart: -- petitioner had moved away from Arkansas and relied on the newspaper article.
Mr. Alvin C. Vinopal: No intention to offend the Court or counsel.
I noticed that it is seems the -- in these cases of this area that the courts have very little record come up here and there is a lot of assumptions are made about what was before the Court.
A -- another aspect of mootness is two that Akron is surrounded by what we would five or six bedroom communities which really have no law on the subject and these real estate people I suppose is, this Court certainly I would assume and I hope the Court would assume that these real estate dealers involved in a vast metropolitan area like that have office and in fact they do in just those separate communities and their activities relate to properties only in those communities and the Akron law wouldn't cover that subject at all.
Now, as a side issue to why I think that really the place for this type of law is with the state is again really real estate business, the activity of dealing and if you will observe the ordinance and even the state act, the ordinance, any person to whom an application is made for a financial assistance for the acquisition, construction, rehabilitation, repair, or maintenance of any housing.
Now, that certainly is a subject which is a regulatory matter involving real estate people and banking people and where real estate people and banking people are regulated by state law, I think that the state law is the place for this particular type of regulatory law.
And that the state law does cover the activities of real estate agents.
And in fact, the matter I'm coming to now deal specifically with that.
I want to talk about the Reitman theory and the background in this particular case.
Now, again Justice Fortas so that I want to be fair here in the record talking about background, I'm referring to a document which my adversaries have quoted on both of their briefs, discrimination on housing in Ohio and I'm sure the courts of the State of Ohio must have had this before them although there's nothing in any of the opinions relating to it but discrimination in Ohio subject got statewide by virtue of this report of the Civil Rights Commission.
Now, that was in January of 1963 and then a bill was introduced by the month after that in 1963 and that bill died as the same goes in June of 1963 it was indefinitely postponed.
But all along I feel to the -- and the environment was that the state was talking about fair housing discrimination in Ohio, so the next thing that happened we come along then to July of 1964 in Akron then passes the fair housing ordinance.
But prior to that, there was in the courts of the State of Ohio commencing in 1963 the case of Porter versus Oberlin which is cited in one of the briefs here wherein the City of Oberlin had a fair housing ordinance and it was attacked as being unconstitutional and in fact, the state court of Ohio did declare that particular ordinance to be unconstitutional, the enforcement portion of it stating that here was the attempt of a municipality to set up in the sense of court and that courts only could be created, particular municipal courts could only be created by the general legislator of the State of Ohio and that therefore since this commission was doing something in the nature of a judicial function that was unconstitutional.
However, I do want to say though in fairness that when the matter came up in our case, the Akron case, the status of it was it was raised again and in the Akron case, the judge who wrote the opinion when our case was before them on the demur level said that the Akron officials had no standing to appeal that case and then several of the judges said that, well, in view of the fact that this Court and as was formally constituted held that the enforcement section of that fair housing ordinance was unconstitutional we would have to go along with it.
But now the consistency of the Court had changed and we probably wouldn't do it.
But the judgment in that Court only stood for the fact that the City of Akron's officials could not challenge the constitutional question.
Justice Thurgood Marshall: Well, is that when you decided to pass 137?
Mr. Alvin C. Vinopal: That wasn't decided Your Honor until March of 1965 so we passed 137 in August of 1964 right within 25 days after the fair housing ordinance went on.
Justice Thurgood Marshall: Why was it passed?
Mr. Alvin C. Vinopal: Well, my own judgment as to why I think it was passed is first of all, we start with a proposition that we don't have to have fair housing ordinance in Akron, that's number one.
Justice Thurgood Marshall: And wasn't it subject to initiative and referendum of the ordinance, the original fair housing ordinance?
Mr. Alvin C. Vinopal: If fair housing ordinance was passed as an emergency ordinance so that would remove --
Justice Thurgood Marshall: It could be attacked by initiative and referendum then?
Mr. Alvin C. Vinopal: No, it have to be attacked by initiative.
Justice Thurgood Marshall: Well, it could be attacked by initiative.
Mr. Alvin C. Vinopal: Well, --
Justice Thurgood Marshall: In other words, you could do one or two things.
You could attack it by initiative which will be a little bit difficult or you could amend the charter which --
Mr. Alvin C. Vinopal: Yes.
Justice Thurgood Marshall: -- wouldn't be difficult.
Mr. Alvin C. Vinopal: Which we did.
Justice Thurgood Marshall: So, you took the easy way.
Mr. Alvin C. Vinopal: Well, in a sense I think we've been afforded the proponents of fair housing when I come to that, I'll tell you why.
Now, the initiative of course would be to start a new law or to repeal.
Justice Thurgood Marshall: Well, if it benefited Mrs. Hunter, why is she here complaining?
Mr. Alvin C. Vinopal: Well, because I -- well, benefited her in the political process that were involved in this particular activity, that's what I mean and I will come to that.
Justice Abe Fortas: Can I ask you before you go to another point?
Mr. Alvin C. Vinopal: Yes.
Justice Abe Fortas: Is there anywhere -- is the affidavit referred to in the complaint which appellant filed with the Commission with the mayor and the members of the Commission, is that affidavit in the record?
Mr. Alvin C. Vinopal: That's in the record, Your Honor.
It's in the -- not in the printed record but it's in the original record.
Justice Abe Fortas: I see.
I haven't yet been able to locate it but I guess --
Mr. Alvin C. Vinopal: Well, it's in there and by the way, there are certain, one or two sections of the charter which I intend to refer to which are not in the printed record but they are in the original record copies of which were furnished to state court by our office, I know.
Well, of course, then we come along as I say to 64 when the fair housing ordinance was passed and the charter amendment.
Immediately right thereafter, and of course initiative at that time would have required naturally 10% of the voters to initiate a repeal of fair housing which you would call it but they chose the other.
Then now --
Justice Potter Stewart: And that took 7% to put it on the ballot?
Mr. Alvin C. Vinopal: No, you see we have a procedure where the council themselves put it on the ballot.
It wasn't required to go to the -- to put this charter amendment on the ballot at all.
Justice Potter Stewart: Well, the council did.
Mr. Alvin C. Vinopal: Yes.
By Section 36, council is permitted --
Justice Potter Stewart: Yes.
Mr. Alvin C. Vinopal: -- to put all ordinances that they -- any charter amendments which they desire on the ballot themselves.
Justice Potter Stewart: Now, just let me, just so that I may understand what happened here.
The council enacted the fair housing ordinance then few weeks later, an amendment thereto.
Mr. Alvin C. Vinopal: Yes.
Justice Potter Stewart: And then you are telling us that and passed each as an emergency ordinance which may each not subject to a referendum.
Mr. Alvin C. Vinopal: Yes.
Justice Potter Stewart: And then you're saying that council thereafter submitted that the voters of Section 137 as an amendment to the Akron city charter?
Mr. Alvin C. Vinopal: Oh, I'm sorry.
Maybe I am confused about that.
I meant --
Justice Potter Stewart: You confused me.
Mr. Alvin C. Vinopal: Yes, I'm sorry.
There was this petition to amend the charter as an initiative petition.
Justice Potter Stewart: Right, --
Mr. Alvin C. Vinopal: Yes.
Justice Potter Stewart: -- and what percentage of the registered voters --?
Mr. Alvin C. Vinopal: 7%.
Justice Potter Stewart: 7%, that's what I thought.
Mr. Alvin C. Vinopal: Yes.
Justice Potter Stewart: What is the -- since I've already interrupted you, what is the population of Akron and what is the usual, the average number of registered voters in an election?
Mr. Alvin C. Vinopal: The county voters are 200,000. I think the city voters are somewhere on 150 to 170,000.
Justice Potter Stewart: Population is about 300,000?
Mr. Alvin C. Vinopal: Yes, 300,000 or somewhere at 350.
Justice Potter Stewart: What percentage is the population of Negro approximately?
Mr. Alvin C. Vinopal: I think we have 11%.
Justice Potter Stewart: Thank you.
Mr. Alvin C. Vinopal: Well, then we come along to January of 1965 at which time Nellie Hunter filed this complaint and following that, there had been again activity instituted in the state legislator whereby in March of 1965, the state fair housing bill was enacted and I think just as a casual personal observation as to why it didn't get enacted in 1963 is because someone who has hazily done after this report and someone wanted to put it in with health welfare and morals in that part of the code and it was batched up and so it come back the next time that the legislator met and they passed it quite readily under the Civil Rights Commission section.
So, as I say as to what the environment in the background then of fair housing was really around the time when this took place was namely that it was already started in the state and that I would presume someone would feel, must have felt that after all perhaps the place like I've just said here, the place to regulate this thing would be statewide and that first and above all, we don't have to have one in Akron anyway.
There are some, there ought to be some place when you could maintain that particular position, it would seem to me.
Now, as to what the impact of this particular amendment had for instance on Mrs. Hunter, it seems to me although I don't want to be unfair in mentioning where she now resides but as to her it would be none.
Now, as to others generally, the only time that there would've been any possibility that their rights were infringed would be from the period of July of 1964 until October of 1965 when we had the state law because we then have the state law covering pretty much a subject.
Although, I --
Justice Abe Fortas: Well, the problem -- I'm really in trouble because there's it seems to me a difference of opinion between you and Mr. Carter as to whether the state law does cover this.
I am yet have been able to find the affidavit setting forth the specific matters as to which she complains at the affidavit she filed with the Commission.
I initially looked through the full transcript and I haven't found it.
Mr. Alvin C. Vinopal: Your Honor, I --
Justice Abe Fortas: But I am troubled by that difference.
Mr. Alvin C. Vinopal: On page 13 of my brief, I have it set out.
Justice Abe Fortas: Oh, you do.
Mr. Alvin C. Vinopal: Yes.
Justice Abe Fortas: Thank you.
Mr. Alvin C. Vinopal: Now, I do want to say that the state law doesn't cover the sale and rental of private property between and A and B.
I will --
Justice Thurgood Marshall: But does the state law covers this complaint.
Mr. Alvin C. Vinopal: Yes, in my opinion, it certainly does.
Justice Thurgood Marshall: What section of the state law?
Mr. Alvin C. Vinopal: That would be Section -- under 4112.02.
Justice Thurgood Marshall: Where is that?
Mr. Alvin C. Vinopal: Page 11 of my brief.
Justice Thurgood Marshall: Page 11.
Mr. Alvin C. Vinopal: Yes.
There is the Section 6, print, publish, circulate any statement or advertising relating to the sale, transfer, so on, so forth of personal residence.
The whole tenor of the -- that portion of the Act seems to me relates to the regulation of the activities of real estate people those dealing in this business.
Justice Thurgood Marshall: Is it print, publish, circulate etcetera, etcetera, etcetera.
I don't see anything in the complaint about printing or circulating.
Mr. Alvin C. Vinopal: Well, from the complaint that I gather, there was a circulated and implied that there were certain properties for sale and then when it come time to show with this lady, they were --
Justice Thurgood Marshall: Do you -- would I be safe in saying that if there is a question as to whether that the state law covers this?
Mr. Alvin C. Vinopal: I -- I'm not doubtful about it.
I think if it was a complaint about that Alvin Vinopal refused to sell somebody their house, I think that would be very serious it wouldn't apply but I don't think under this --
Justice Thurgood Marshall: No but I mean, that it's covered by the state law.
Mr. Alvin C. Vinopal: I think it does, her complaint.
Justice Thurgood Marshall: Do you think there's some question and it's not covered by the state law?
Mr. Alvin C. Vinopal: No.
Justice Thurgood Marshall: Do you recognize that?
Mr. Alvin C. Vinopal: No, I do not.
I think these particular paragraphs were sufficient to cover that particular complaint.
Justice William J. Brennan: Did your state court say whether it did or didn't cover it?
Mr. Alvin C. Vinopal: No, of course, the state court of course all we dealt with there is whether or not the state court had a right that this a regulation and that the state court had -- that the people of Akron had the right to vote.
Justice William J. Brennan: Well, isn't it a matter of state law whether or not the state statute covers this complaint?
Mr. Alvin C. Vinopal: Yes.
Justice William J. Brennan: Well, how we can't resolve that question?
Mr. Alvin C. Vinopal: Well, in this case, the question of that problem never was raised in the state court.
Justice William J. Brennan: Well, but the point is, it's an issue at all we can't decide, can we?
Mr. Alvin C. Vinopal: No, I don't think.
Justice Thurgood Marshall: But there is not question that that complaint would come before the Commission if the Commission had been in existence and if 137 had not been adopted.
Mr. Alvin C. Vinopal: Yes.
Justice Thurgood Marshall: No question.
Mr. Alvin C. Vinopal: Yes, that's right.
Justice Thurgood Marshall: And the Commission might have, since you say that such a wonderful atmosphere in Akron, couldn't the Commission have talked to the seller and the realtor and explained, you shouldn't treat this woman this way and be nice to her and it could have all been settled, could it?
Mr. Alvin C. Vinopal: Yes.
Justice Thurgood Marshall: But it couldn't be settled once 137 was passed.
Mr. Alvin C. Vinopal: That's right.
Justice Thurgood Marshall: And you say, you helped in the situation.
Mr. Alvin C. Vinopal: Say what?
Justice Thurgood Marshall: You say you helped in the situation.
I've taken away one of the evidence as you were helping it.
Mr. Alvin C. Vinopal: Well, on the basis of the fact that we did not have to have a fair housing ordinance in Akron that we have adequate remedies namely by the state law and now the federal law.
At the time of course that she filed a complaint, there was no federal law of course.
However, there was the federal law with respect to the private individual's sale of the property and there were those remedies.
What I'm coming to about that we helped or that the situation was a benefit in this respect as to the matter of the burdens that are placed upon people in this particular situation.
Now, I read a vast --
Justice Abe Fortas: Before you go on with that, may I see if I can clear this up in my own mind anyway.
Mr. Alvin C. Vinopal: Alright.
Justice Abe Fortas: If Mr. Jones, a resident of Akron owns a one-family house and he has that on the market for sale and he refuses to sell it to Mrs. Hunter because she is a Negro.
That would not violate the state law, would it?
Now, Section 4112.02 on page 10, --
Mr. Alvin C. Vinopal: Yes.
Justice Abe Fortas: -- in subparagraph 1 refuse to sell, makes an unlawful discriminatory practice to refuse to sell on a count of race, etcetera but that applies only to commercial housing, doesn't it?
Mr. Alvin C. Vinopal: Yes, sir.
Justice Abe Fortas: And would not affect this situation.
Mr. Alvin C. Vinopal: Yes, sir.
Justice Abe Fortas: Now, I fail to see anything else in the state law, I may be wrong, but I fail to see anything else in the state law that would reach the case that I just put to you, am I wrong?
Mr. Alvin C. Vinopal: That's right but that isn't the case we have here.
Justice Abe Fortas: I'm right about this?
Mr. Alvin C. Vinopal: Yes.
Justice Abe Fortas: Well now, then you turn to page 13 of your brief and you look at the affidavit that I couldn't search and in that affidavit, the agent, according to the affidavit, the agent stated to Mrs. Hunter that she could not show me any of the houses on the list because all of the owners had specified that they did not wish their houses shown to negroes so that it's at least arguable, isn't it that Mrs. Hunter, the gravamen of Mrs. Hunter's complaint here is that the owners of individual houses, not commercial property, the individual houses refused to sell to her and that would not be covered by the state law.
Mr. Alvin C. Vinopal: Well, merely on the basis of a statement of some real estate agent, it would be arguable, yes.
Justice Abe Fortas: Yes.
Mr. Alvin C. Vinopal: But not in her specific private dealing with any private individual, it wouldn't be.
Justice Abe Fortas: Well, I think I got the line straightened out anyway.
Mr. Alvin C. Vinopal: I got into the question here of what barriers are placed in the path of these people who wanted this particular ordinance and I have read a stack of cases I guess this high and right now, I would say they're all piled on the floor of my mind and I couldn't sort anything up and tell which or any of them ought to be catalogued but I drafted a little statement here which I thought was in the sense the rule would apply here as to whether or not there had been unreasonable barriers placed in the way for these people to accomplish what they want and I think we go back basically to the proposition that this really is a political duel or a political competition.
Someone wanted fair housing and someone didn't want fair housing.
Now, as I see it, in a political duel between those who want a certain regulation and between those who oppose it if the state or the city in this particular case -- the city or the state in this particular case may not place in the way of those who desire it any barriers which without the state or here the city's total political system taken as a whole any barriers which are especially difficult of surmounting by comparison with those barriers that normally stand in the way are those who wish to use the political process to get what they want.
Now, in coming to the answer to --
Chief Justice Earl Warren: Would you amend your -- would you amend your hypothesis there to this extent to say that this was a political combat between those who wanted to protect their constitutional rights and those who wanted to deny them to them and could you proceed from that and get the same result?
Mr. Alvin C. Vinopal: Well, I would say that I'd have to grant that certainly those people have the right to their constitutional rights and it would have to fit in whatever process the city or the state involved, included, would have to be rights that are allowed and permitted under the Federal Constitution.
Of course, that would be basic in this assumption here.
Now, so I say that the fact about the way this particular charter amendment ended up was that it's easier for those who desire to get fair housing with it than it was before because I'm sure this Court can conceive and I certainly do of city council's right in our own, my own area who wouldn't pass fair housing.
So, therefore what are they going to have to do with those who want it?
They're going to have it get referred.
Those who would want to have it eliminated; they will have to use the process of referendum.
Justice Thurgood Marshall: So, am I correct that we already have fair housing enacted?
Mr. Alvin C. Vinopal: Yes.
No, we do not have it.
Justice Thurgood Marshall: I said at this time, we already have it.
Mr. Alvin C. Vinopal: Well, no because in the state court of Ohio says that we did not because it was suspended.
There was no fair housing law --
Justice Thurgood Marshall: Up until it was suspended, you did have it and so you helped by taking it away.
That's where you lose me.
Mr. Alvin C. Vinopal: Well, until that the ordinance become effective, Your Honor, it seems to me we wouldn't have it.
Justice Thurgood Marshall: I would also assume that the ordinance that was passed would become effective.
Mr. Alvin C. Vinopal: Well, again getting back to the total procedures which are permissible --
Justice Thurgood Marshall: What more it was accomplished other than that under your argument that Akron save the money of the Commission?
What else did you say?
Mr. Alvin C. Vinopal: Well, --
Justice Thurgood Marshall: In Akron.
Mr. Alvin C. Vinopal: Well, because I think the state commission was far better equipped to handle the complaint, that's another thing.
Justice Thurgood Marshall: Is it in operation now?
Mr. Alvin C. Vinopal: Yes, it's in operation now and real estate people are regulated by the state.
Justice Thurgood Marshall: And would it handle this complaint?
Mr. Alvin C. Vinopal: Oh, yes.
It's going to be my judgment that it would.
Justice Thurgood Marshall: I'm going to let you interpret your own law but I would feel much better if I were an ordinary citizen if I had three protections than if I had two.
Mr. Alvin C. Vinopal: Well, there are those who feel we have too many laws overlapping as they are and my own judgment is that since this is a total problem that we ought to regulate statewide that ought to be done that way because as I just said there are many of this municipalities in Akron who aren't going to have, do not have one and never will have one in my own humble judgment and so --
Chief Justice Earl Warren: Well, is it your -- is it your opinion that the state law preempts this whole situation?
Mr. Alvin C. Vinopal: Well, preempt -- the state is now in and I'm sure that if Akron tried to do anything that the state found offensive to the way it was handling then that would be held improper.
I think the cities could have -- the cities are allowed to have laws which are not in conflict with the general laws so if we had some -- if it didn't disturb what the states got it wouldn't -- there would be no problem.
Justice William J. Brennan: Well, I must say Mr. Vinopal, I have trouble seeing how we can accept your insistence that the state law indeed preempts whatever words you want to use, despises any state -- municipal regulation in this if your state courts haven't said so.
How can we proceed on this case on that premise?
Justice Potter Stewart: It's not your position that the state law replaces this because as a matter of Ohio law, that doesn't happen.
Any city, any home rule city can have an ordinance so long as it's not with conflict with state law and then neither one of the other supersedes or preempts the other.
Each is a viable law, isn't that correct?
Mr. Alvin C. Vinopal: Yes.
Of course, my position that since --
Justice Potter Stewart: It's never your position that the relief asked for by the plaintiff in this case is now provided by state law.
Mr. Alvin C. Vinopal: That -- that's my position that there was a state law which provides the relief that she could had.
By the way, this was a mandamus case --
Justice William J. Brennan: Well, if it is, I still don't see -- that enables this Court to escape the determination on the constitutional question that's been presented to her.
I gather that's the whole gist of your argument, is it?
Mr. Alvin C. Vinopal: Well, it seems -- yes, that's the one face of it but if this party had other remedies, it seems to me would be a moot question and on that basis, it ought to be concerned with this Court.
And of course we have -- now have the federal law.
Well, anyway, to get back to Justice Marshall, why as I say anyone starting from scratch, if I may use that word, who would want fair housing would have to take a tour.
If they found an unfriendly council, they would have to take it to referendum.
Now, that is not necessary.
Under the procedure now, council may had any time to put this fair housing ordinance before the people and so therefore the barrier --
Justice Thurgood Marshall: These other communities are not before us.
Mr. Alvin C. Vinopal: Right.
Justice Thurgood Marshall: Am I correct?
The only community is Akron.
Mr. Alvin C. Vinopal: Yes.
Justice Thurgood Marshall: And Akron had a fair housing ordinance and that's the case we are deciding.
Now, if you made it easier for Cleveland and all the other cities, that wouldn't affect Akron as I see it.
Mr. Alvin C. Vinopal: If I may just a moment here.
The Supreme Court of Ohio made this statement Your Honor on that subject at page 50 of the record.
It is obvious therefore that if Section 137 of the Akron charter is valid, its words require the conclusion that the ordinance relied upon by realtor had ceased to be effective.
Immediately, that ordinance was in effect when the charter section was adopted and the ordinance was never approved by the electors, has never been approved by the electors.
So that in the sense from the time, for the 25 days, --
Justice Thurgood Marshall: But I read this in saying if Section 137 is valid.
If, and that's the point that's before this Court right now, is it valid or not?
Isn't that the issue?
Mr. Alvin C. Vinopal: Yes, yes.
Well, of course we contend that it's valid because it sets up no particular extra, unusual burdens.
The classification in order to be obnoxious I think this Court has generally said must be arbitrary and having no reasonable basis.
Well, certainly if the people want to refer -- have referred to the question of fair housing would not seem to be unreasonable in view of the environment that existed at the time.
Chief Justice Earl Warren: In view of what?
Mr. Alvin C. Vinopal: In view of the environment that existed at the time, namely that there was pending going in the state, the activity of having a state law that possibly that the enforcement provisions of a city ordinance may not have been effective any way in view of those things, in view of the fact that it's not necessary to have one that this was the first opportunity in I would say that people could have to decide whether they wanted one or not since council had elected to pass the ordinance the way they did.
So in view of all of those things, I don't see that it's unreasonable at all that they should desire to do it this way.
So that really, all it has to be done now is to have council bring it to the voters, saving anyone who wanted to have fair housing, the obligation or the need for getting out a referendum petition, granting as justice says indicated it for the 25 days, there was a law but nothing had ever happened.
The Commission had never got organized.
There was -- everyone conceded I think at the time that they were waiting to see what was going on at the state courts with respect to overland, with respect to whether we're going to have state law or not.
So in view, I'll grant you that maybe one of the things but taking overall, the environment was favorable to those who wanted to do it this way in my humble judgment.
Now as to other barriers of course council has spoken of the tax ordinance and that was one of their chief complaints that we had.
These people had heavier burdens.
Well, this ordinance was singled out while it wasn't as they have indicated here both these tax procedures and then also there's another one which is not in my brief and I regret in preparing for this case that I -- being my first trip over the road, I perhaps may note down what I should have namely with respect to where Mrs. Hunter now resides and with respect to another charter in Section 39 regarding franchisers says this that if anyone wants a franchise for public utility, every such proposed grant and every proposed renewal or extension of such grant by ordinance passed by the council shall be subject to referendum.
There, anyone who wants to have some sort of franchise stands the risk right off the back of having the people vote on the subject if they want to circulate petitions for that purpose.
Justice Thurgood Marshall: Wouldn't you assume that utility is better shaped financially to get a referendum than a property owner?
Mr. Alvin C. Vinopal: Well, some of them are but some of that I dealt with a little fellow with the bus line who I had to help get a franchise with the city, was put to bankrupt when he started.
But I'll say even he would be better off.
Yes, I'd agree.
Justice Abe Fortas: Perhaps, it's arguable that this case will be more likely the public utility charter provision if the latter said that utility charters may be issued to white people without a referendum but if any utility charters can be issued to Negroes then you got to have a referendum.
Because as I understand your adversary's argument, he is pitching his case on that narrow point of racial -- alleged racial discriminations and as I understand this case, if for example, the provision adopted here had said that all legislation, all ordinances regulating terms, conditions, manner, etcetera of sale of real estate have to be submitted to the voters, then the same line of argument would not apply.
That's -- that's my understanding of his argument and that's why I put to you the alternative case with respect to utility franchise.
Mr. Alvin C. Vinopal: Well, of course, granting this is the element of the racial discrimination but in the sense we look at on this instance was an ordinance dealing with a regulation of a subject and of course one of the subject was the sale of housing whether it was to Negroes, to whatever classification of people was.
It covered namely the subject of the sale and the rental of property and in that sense, I think that the people definitely had a right to consider that like they have done in other situations in their charter haven't referred to them for the purpose of whether they wanted it or not.
Not merely because they ought to go slow in this area but because of the other issues that I've mentioned, namely that it was still going through the state courts.
It was still being looked at into by the state legislator and also by virtue of the fact that really if we're going to regulate this thing and do this properly right possibly that it plays out to be done with the state because really in the area that we're dealing with here, it's subject involving real estate people, the way they handle this business and as I pointed out, that's the basic subject.
The few transactions between private people is a nullity anymore.
Chief Justice Earl Warren: Why do you assume that we have to go slow in this area?
Mr. Alvin C. Vinopal: No, I -- my statement was that not necessarily.
I didn't say that.
I know that the Court said but that isn't -- I wouldn't necessarily make that --
Chief Justice Earl Warren: I understood you to say just a moment ago that because it was necessary to go slow in this area.
Mr. Alvin C. Vinopal: No, I didn't speak loud enough.
I said regardless of that.
I made that an exception to my statement and I said my earlier --
Chief Justice Earl Warren: Regardless of what?
Mr. Alvin C. Vinopal: My position is that the need to go slow isn't an element in here as to why the people would want to have this.
I don't consider that really vital to the thing.
I -- I think that the basic other interest, what I've talked about here.
Well, here we are.
Here's a big subject we're going to get into and by the way of course I can't go off the record but I understood that the real estate people were really the ones who were in favor of having the Act down the state in having it where it could be regulated.
And since we're getting into a vast subject of dealings with transactions involving the financing and sale, in the mortgaging interest and all of those things on property, well, I will conclude by saying that it seems to --
Justice Byron R. White: But Mr. Vinopal, could I ask you a question please?
Mr. Alvin C. Vinopal: Yes, sir.
Justice Byron R. White: Didn't this ordinance do two things?
It said that a certain kind of ordinance can't be effective without the vote of the people.
That's one thing it is.
Mr. Alvin C. Vinopal: Amendment, yes.
Justice Byron R. White: Yes.
But then it also said that an ordinance -- a particular ordinance that's on the books is suspended.
Mr. Alvin C. Vinopal: Yes.
Justice Byron R. White: Now, why can't the -- why can't a -- don't you think there's separate question involved here of whether a city may just drop and repeal an ordinance because this charter did at least did that may have gone farther and did something that's arguably impermissible?
Mr. Alvin C. Vinopal: But didn't it just gotten repeal among other things just suspend an existing ordinance.
Yes, it did that and --
Justice Byron R. White: Well, don't we have to hold that therefore that if the city may not -- for you to lose; don't we have to hold that a city may not repeal an ordinance?
Mr. Alvin C. Vinopal: Yes, but I think a city can repeal an ordinance because there are the procedures and the machinery was adopted for their purpose.
Justice Byron R. White: What you're suggesting as an argument you might make?
Mr. Alvin C. Vinopal: Well, there are several arguments that I'll think about tonight perhaps that I ought to say.
But I'm going to close with this that not only several of your fistful.
That iceberg under what I presented here is pretty large and it was a good argument but I didn't make it.
It seems to me that we don't need a hatchet operation here, that after all, we do have decent, we have surgical machinery that is taking care of this problem by virtue of the state and the federal law and the 1869 Act and that therefore we ought to do something now which would amputate the whole governmental machinery, the process of initiative referendum which is really structured for the local communities and that's another argument I should have made.
This is after all, this is only local.
Maybe I did touch on that.
This isn't statewide.
This doesn't cover everybody.
This is just Akron and so my final word is that we shouldn't burn down the barn to roast the pig.
I think with that I shall close.
Thank you gentlemen.
Chief Justice Earl Warren: Mr. Carter, you have a few moments left.
Justice William J. Brennan: Mr. Carter, how do you answer Justice White's question?
Rebuttal of Robert L. Carter
Mr. Robert L. Carter: Well, Mr. Justice White's question about the repeal?
I think that in terms of answering, it seems to me that Akron has done more than merely repealing the statute.
Now, what Akron does --
Justice William J. Brennan: It has done that?
Mr. Robert L. Carter: It has done that clause.
Justice William J. Brennan: There are two sentences that were put.
I gather your or am I wrong?
What your particular concern, would it that sentencing, any such ordinance in effect shall seek to be effective until approved by the electorate.
Mr. Robert L. Carter: That's right but the point that it's --
Justice William J. Brennan: Well, if that -- if you will prevail as to that sentence, is that the end of the case without reaching the first sentence?
Justice Byron R. White: Although as I understood your argument, you've been arguing about what's to the first sentence that you may not single out a housing discrimination ordinance as the kind must be submitted to the electorate and another.
That's been the import of your argument, I thought.
Mr. Robert L. Carter: The -- I think it's a matter of fact that we -- what we have here are the two bases.
As you indicated, the ordinance did two things.
The amendment to the charter did two things.
It said, that fair housing ordinance that you have on the statute books is not cannot go into effect and is suspended pending a vote of the people.
It said -- it said secondly that no fair housing can passed or fair housing ordinance can be passed except by this process.
Now, it seems to me --
Justice Byron R. White: You did that in arguing -- up to now, you've just been arguing about the latter aspect of it.
Mr. Robert L. Carter: Because the latter aspect of it in -- I have been arguing I think about both of them because I think that's the question that Mr. Justice Stewart asked.
Justice Byron R. White: Well, you mean we don't --
Mr. Robert L. Carter: Mr. Justice Stewart said to me I think that would I have to make an argument about this is the statute have not been on the books?
Couldn't I make the same argument here if this without any prior history of fair housing that this -- there's the first sentence that had fit in, and I said of course I would be.
Justice Potter Stewart: Because it could have had quite the same lawsuit but you would have exactly the same constitutional argument.
Mr. Robert L. Carter: Yes, I would have the same constitutional argument.
I think I would yes.
Justice Byron R. White: I agree with you and that's why I say that's what have been the burden of your argument is the singling out of this kind of an ordinance for special treatment.
But you still have to get by the -- you still have to say that in the process of putting on this kind of a, what you an arguably unconstitutional provision, that the state may not repeal an existing ordinance.
Do we have to decide the whole for you that a state may not repeal an existing ordinance?
Mr. Robert L. Carter: You don't have to decide that a state may not repeal an existing ordinance.
Justice Byron R. White: I mean an existing fair housing ordinance?
Do we have to decide that?
Mr. Robert L. Carter: I don't think you have to.
Justice Byron R. White: Why not?
Mr. Robert L. Carter: Because of the fact that that I think that what you have decide it seems to me --
Justice Byron R. White: Because that's one thing the state did here.
Mr. Robert L. Carter: Well, that's one thing the state here but the state did more than that and what the state did more --
Justice Byron R. White: I know but why do we even have to get to it the more?
Mr. Robert L. Carter: Because of the fact that if the state having done more, it seems to me that in so far as my argument is concerned that it is a simpler constitutional question to indicate that the state cannot single out these people and bar any legislation to some.
Justice Byron R. White: Let me ask you this Mr. Carter.
Suppose the Court decided that the first sentence of this ordinance was unconstitutional --
Mr. Robert L. Carter: Right.
Justice Byron R. White: -- and stopped it or it said the first sentence is unconstitutional but it was perfectly constitutional for the state to repeal this ordinance so there is no ordinance in effect in Akron but the provision singling out fair housing ordinances as those which must go to a referendum or an initiative is unconstitutional, would that satisfy you or not?
Mr. Robert L. Carter: Well, it would appear to me that --
Justice Byron R. White: In short what is this case about, is it?
Mr. Robert L. Carter: This case is about the fact that the ordinance of this kind, the state has singled out a particular class of legislation and said that you may not act this without going through certain processes.
Justice Byron R. White: Well, let's assume the Court agreed with you on that.
Mr. Robert L. Carter: That the state has also said -- the state has done more Mr. Justice White and say that it has repealed the ordinance because it says --
Justice Byron R. White: Well, you want us to say that the repeal is also unconstitutional?
Mr. Robert L. Carter: I want you to say that repeal is unconstitutional with the burdens that have been placed upon it at the present time.
Justice Byron R. White: Well, we can say the burdens are unconstitutional but why does that make the repeal unconstitutional?
Mr. Robert L. Carter: Well, if you say that the burdens are unconstitutional, it seems to me that the issue as to whether a simple repeal is unconstitutional is not my case.
Justice Byron R. White: Well, then you want us to reach whether or not the ordinance is now in existence in Akron.
Mr. Robert L. Carter: That's right.
And as far as we're concerned Your Honor, our view is that we are here -- this ordinance ought to be struck down for the reasons that have been indicated that it's a violation of Equal Protection Clause.