JAMES v. VALTIERRA
Legal provision: Equal Protection
Argument of Archibald Cox
Chief Justice Warren E. Burger: -- Whenever you're ready.
Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.
I suggested yesterday that our submission that Article XXXIV violates the Equal Protection Clause of the Fourteenth Amendment could conveniently be approached in four steps.
The first which I covered was to show that the indisputable purpose and effect of Article XXXIV is to erect an obstacle in the perils of the poor when they seek governmental action to supply their need for housing.
It does not confront any other group seeking governmental action to satisfy its demands on the political system and that the provisions for the automatic referendum cannot be explained by the consistent application of any neutral or general principle.
Our second main point is to emphasize that Article XXXIV builds its unique bias into the very structure of the political system into the very core of Government itself.
I stress that point also its obvious for this reason.
It’s quite clear that in working out substantive policies lines must be drawn by Government and sometimes those lines are very difficult ones as in Dandridge v. Williams.
It’s also clear that substantive policies when developed by Government sometimes operate more harshly against one class than against another.
An example is the currently much publicized litigations so not in this Court attacking zoning laws on the ground that they fenced the poor out of communities.
The point I'm trying to make is that we’re not asking the Court to render a decision that has any impact upon those kinds of questions.
Here, the bias is in the way decision are reached by the political community and it seems to us that not only narrows the issue but that it makes the discrimination a great deal more wrong, it’s a discrimination, like discrimination in voting or in apportionment or even in the way one stands before the Court.
Justice John M. Harlan: Are there any evidence in this case if this was racially motivated?
Mr. Archibald Cox: I don’t think one can say that there is any proof that the thinking of those who voted to put this into the Constitution was that there's any proof that it was racially motivated.
We do know that in its operation since it bears upon the poor it bears more harshly upon minorities than it does on any other group.
That’s particularly true in the area of housing.
I do intend to develop that point a little bit before the two arguments are over.
But I think that this being a discrimination built into the political system that the case comes within what was said in Hunter and Erickson.
The state may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf that it may dilute any person’s vote or given a group a smaller representation than others of comparable size.
The third main point I would wish to emphasize is that on the face of this statute, it singles out for separate classification the poor or in the words of the statute persons of low income.
And persons of low income are defined as persons or families who let the amount of income which is necessary to enable them and to live in decent, safe, and sanitary dwellings without overcrowding.
Again, I think the explicit singling out of persons of low income narrows the issue that is here, it narrows it in several senses.
In the first place, there could be no doubt about the group against to whom the discrimination runs.
Second, this is not in any sense a shifting group, the poor identifiable and unfortunately to coherent a group in a sense.
It’s not like Williams and Rhodes were arguably the group came together for one purpose then broke up later or like Westbrook and Mihaly.
The California case dealing with the two-thirds the majority required for a bond issue where one could say that the group was temporary.
But here, it is a continuing group -- a group who are experience tells us a particularly subject of prejudice, invidious discriminations in the area of housing.
This brings the case we think within principles of this Court has often noted for example in McDonald against Board of Election Commissioners.
The Court observed that discrimination against the poor was enough to render a classification highly suspect and thereby demand the more exacting judicial scrutiny.
And in Mr. Justice Harlan’s dissenting opinion in Griffin and Illinois, he noted the States of course are prohibited by the Equal Protection Clause from discriminating between rich poor as such in the formulation and application of their laws.
In this statute, we submit thus precisely then.
In other words, to summarize what I have said thus far the combination of an explicit separate classification of the poor with disadvantage in the very processes by which governmental decisions are reached and unexplained by the consistent application of any neutral or general principle, we think if it is not enough to condemn the statute out of hand is certainly enough to put upon the state -- a very heavy burden of justification.
And I turn now therefore to the justifications which I understand to have been offered, they fall into three groups.
The first group might be said to be political, that is it has to do with the organization of government and it said first that the interest in popular self-rule or popular sovereignty explains the line which California has drawn here.
The difficulty is that while there is of course an interest in popular self-government.
That interest does not explain the line that California has drawn, the discrimination is made.
There are other items that do not require this automatic referendum in which there is exactly the same interest in popular self-government.
Indeed, in this respect, the case is no different from Hunter and Erickson.
It said that Article XXXIV is a result of a whole that developed in Article IV, Section 1 of the California Constitution.
Well, if Article XXXIV was a reaction, it was an overreaction and it’s the over part of it if I may put it colloquially that we say that discriminates and of which we complain.
Chief Justice Warren E. Burger: Mr. Cox, I don’t recall whether yesterday you treated the question or the problem of the community’s right to pass on what amounts to a discrimination in taxing of these projects that is this project will not pay its fair share of tax in the minds and eyes of this small home.
Now, isn’t that an important interest to deserve protection of a referendum?
Mr. Archibald Cox: There is such an interest and these projects they will be less contribution by the government because it’s limited to 10% of the shelter rents on these projects.
Then they’re might be collected if the full value of the project was taxed as if it was privately owned.
But there are many instances Mr. Chief Justice in California where projects are undertaken some by the Government, some by charities and other private institutions where land and buildings equally are taken off the tax rolls and they are not subject to referendum.
Chief Justice Warren E. Burger: But those are quite different categories of federal government building obviously (Voice Overlap)?
Mr. Archibald Cox: Well, I never said with government building, I was thinking of the school or an airport, a university, medical complex, the parks, superhighways, all kinds of things that are taken off the tax rolls just like this.
Chief Justice Warren E. Burger: Aren’t they distinguishable and that they serve everyone?
Mr. Archibald Cox: Well, I think that to a degree and of course this is what the court has said in upholding public housing that public housing serves everyone.
I would submit that this case in this respect is very like Shapiro and Thompson that there is an interest that the people have in asserting physical control.
But that that interest does not justify discriminating on invidious grounds against a particular class, there, it was a different class than here, but Mr. Justice Brennan’s opinion is very explicit.
It may legitimately attempt to limit its expenditures or I would say take things off the tax rolls whether for public assistance, public education or any other program.
But the state may not accomplish such a purpose by invidious distinctions between classes of its citizens.
And I think to say while we’re going to be concerned about public expenditures and handle this differently where they benefit poor, but we’re not going to concern them or where the primary benefit are those who used an airport or those who used their superhighway or those who want to go to school or those who want to be in hospital is an invidious discrimination.
Chief Justice Warren E. Burger: Suppose if we follow from your thesis that a state could not submit to popular referendum the question of welfare programs and welfare because by definition they are only for the poor?
Mr. Archibald Cox: Well, I would think if the only thing submitted to popular referendum on a continuing basis was a form of public assistance that that would be subject to an argument very similar to ours here, yes.
But it’s again I think it is singling out a particular class and saying that in your “claims” if I may use the word in the loose sense against government. You don’t stand the same way everyone else does.
You don’t stand the way merchants do when they want improves streets.
You don’t stand the way that public does when it wants a superhighway or parents do when they want schools.
You have to get over this additional higher earning and it does seem to me that that's just wrong that it puts a brand on the poor that it is just as offensive as the brand of race in other cases.
Now, there's one other set of justifications offered and those have been labeled sociological and environmental.
Mr. Atkinson yesterday, raised the specter of the large block of public housing that we have seen in places like St. Louis; we have one in Hadley and Cambridge.
That just in fact is the rationale then Article XXXIV is both too broad and too narrow.
It’s too broad because public housing is not confined to that kind of project.
It involves small housing units and very similar to those built by private ownership.
Indeed, there's no better illustration that may one in this record that was voted down by referendum because the proposal was to build not more than a thousand dwelling units.
Not more than four such dwelling units situate and anyone structure, may I just finish reading this point.
Not more than one structure containing any such dwelling unit shall be situate on anyone lot, this is record 29 and such dwelling units shall be disperse upon various sections of the city.
So that not more than 24 such dwelling units, that would be six structures at the most you see shall be situate within a radius of 1500 feet from any other such dwelling unit.
So that what is -- put to referendum here is a far broader class of things, it’s too broad and not the kind of things to which the rationale is suppose to apply.
Similarly, not everything to which the rationale it might apply is to put the referendum, but as I say Mr. Chief Justice that the form of referendum that I just referred to suggest the answer to the question you raised yesterday about how would you put the question affirmatively to the voters because it does described in sufficient terms the kind of project that would be or might be put to them to require in blocking up the project.
Justice Hugo L. Black: May I ask you just one question?
I didn’t quite understand your answer to the Chief Justice.
Suppose California will submit to the people a referendum vote on whether or not how any longer be used and to state a system of public relief payable out of tax raised funds, did I understand you say that would be unconstitutional?
Mr. Archibald Cox: I think a continuing rule requiring that appropriations for public relief be submitted to referendum when nothing else is submitted to referendum would be discrimination against the poor and the violation of the Equal Protection Clause, yes.
Justice Hugo L. Black: In other words, that takes away from people the right to decide and determine their policy (Voice Overlap)?
Mr. Archibald Cox: If the people wish to determine their policies even handedly --
Justice Hugo L. Black: In the point of view, what's right?
Mr. Archibald Cox: I missed the last few words.
Justice Hugo L. Black: In the point of view, what's fair and right, I guess?
Mr. Archibald Cox: I say, if the people as we do in where I live determine our policies in town meeting with everyone attending.
I don’t think this Court could say that that was unconstitutional because we make all our appropriations that way.
Justice Hugo L. Black: Suppose they abolish all relief and no attempt issues?
Mr. Archibald Cox: In the original Constitution?
Justice Hugo L. Black: I'm talking about now.
Mr. Archibald Cox: As if it was as a substantive policy or are other words statute that abolished our relief, I don’t think we could -- we certainly wouldn’t make the argument we do here.
That would be a substantive decision.
It would not be a discrimination built into the structure of government.
Whether there are other arguments I don’t know, but it wouldn’t be the argument we make here.
Justice William J. Brennan: Mr. Cox, if that’s your town meeting, the populace voted to to abolish all relief you would be herein (Voice Overlaps)?
Mr. Archibald Cox: Certainly not on the ground, no, not in the ground we are now.
If I said anything to contrary to that, I -- that's just slip of the tongue.
Justice William J. Brennan: That was Justice Black’s question?
Mr. Archibald Cox: Well, I missed understood and your answer Mr. Justice Brennan is quite right.
Chief Justice Warren E. Burger: Well then, I am confused a little bit Mr. Cox, hasn’t the State of California had in effect a town meeting and made a constitutional amendment that all low-cost housing which is a form of welfare must be subjected to (Voice Overlap)?
Mr. Archibald Cox: I'm trying to distinguish perhaps I become confused.
I'm trying to distinguish between a decision of substantive policy, there shall be no housing or there shall be no relief what seems to me to be one question.
And a decision that builds a disadvantage into the way substantive policies are made which I say under Hunter and Erickson is like waiting votes or denying vote to a particular class.
And I think this is of the utmost importance because saying to a class of people that they don’t -- are treated and particularly to a class of people subject to invidious discrimination that they don’t stand like other people.
The decisions affecting them ought to be made by the same processes as decisions’ affecting other people is particularly offensive to our system -- constitutional system of government.
Chief Justice Warren E. Burger: Do you distinguish in this respect between a constitutional limitation and legislative action that would eliminate some type of welfare program or subsidy for housing?
Mr. Archibald Cox: Well, if -- I don’t think if California were to repeal its statute providing for accepting public housing under the United States Housing Act.
I think we would have an all together different case.
Because again, it would not be a discrimination built into the way decisions are reach.
Chief Justice Warren E. Burger: But its impact would be entirely the same, wouldn’t it?
Mr. Archibald Cox: Yes that’s true, but of course in other places when it comes to discrimination in voting or when it comes to malapportionment or other things of that kind, we don’t say that the consequences might end up the same way.
Indeed, to take a silly example that occurred to me on the way up here, we don’t say when a man complains that he’s been put on trial without counsel.
Well, you might do a whole lot better than a lot of lawyers I’ve heard in court.
It’s the fact of the discrimination, the additional hurdle or obstacle or in the singling really for an oppressive brand to which offends me that I think makes the difference.
Justice Hugo L. Black: I didn’t think that our counsel cases were based on discrimination; I thought they were based on the constitutional provision.
Mr. Archibald Cox: No, my analogy doesn’t help on the discrimination.
It was meant to go on later the point that the way it meant to argue that it might end up the same way isn’t an answer to an unconstitutional action by the state.
That was all I meant just a minute.
Justice Byron R. White: Mr. Cox, I take it that Hunter and your argument depends on their being -- or depends upon there being a constitutional difference between subjecting all legislation to a referendum by petition and singling out some particular subject matter for an automatic referendum.
Mr. Archibald Cox: That’s quite right, they do and their cases are exactly the same in that respect.
Justice Byron R. White: And I take it to few and your town meeting where you lived suddenly decided that public housing matters that would have to be passed of two-town meetings instead of one you would have in one.
Mr. Archibald Cox: Precisely, very, very similar indeed.
Chief Justice Warren E. Burger: Mr. Cox.
We've enlarged your time a few minutes Mr. Atkinson, you'll about 10 or 11 minutes left.
Argument of Donald C. Atkinson
Mr. Donald C. Atkinson: Thank you Mr. Chief Justice.
Mr. Chief Justice and may it please the Court.
I think Mr. Cox’s argument here has revealed a number of things.
I believe really what he’s saying is that California would have to submit everything to a prior automatic referendum for them to be able to employ a prior automatic referendum anywhere.
And I don’t believe that there are any cases that he can cite to indicate that that's the rule at the present time.
Justice Byron R. White: But what about Hunter?
Mr. Donald C. Atkinson: I don’t think that was a rule in Hunter Mr. Justice White.
Hunter was dealing with the situation where there was no referendum -- pardon me, where there was a referendum right and there was another referendum right built on top of it and the only possible reason for that is the Court indicated was to discriminate.
There, you have racial classification also the court so states --
Justice Byron R. White: Yes, but the discrimination amounted to the discrimination amounted to subjecting one type of subject matter to an automatic referendum, whereas the general referendum law required the petition.
Now, here in California you have a general referendum law by petition?
Mr. Donald C. Atkinson: That’s correct.
Justice Byron R. White: Except that this administrative action that was held was not subject to that, right?
Mr. Donald C. Atkinson: That’s right.
Justice Byron R. White: And so California in filling the void said, “Well, we won't subject this administrative action to referendum by petition.”
Mr. Donald C. Atkinson: That’s right.
Justice Byron R. White: Like all other subject matters are subject to but we will subject it to an automatic referendum, right?
Mr. Donald C. Atkinson: I would disagree to this (Voice Overlaps) --
Justice Byron R. White: Well, isn’t that true?
Mr. Donald C. Atkinson: No, it is not true.
There are other areas in California where prior automatic referendum (Voice Overlaps) --
Justice Byron R. White: Well, if they are true, but your general referendum law is a petition referendum?
Mr. Donald C. Atkinson: Yes, for state local bodies, yes.
Justice Byron R. White: Yes and here you subjected the administrative action to an automatic referendum, that’s so far I'm right?
Mr. Donald C. Atkinson: Yes, sir.
Justice Byron R. White: And there may be some other automatic referendum areas but and they might be a suspect as this one for all I know (Voice Overlap) but we’re talking about this one.
Mr. Donald C. Atkinson: I that’s you're very well raising the specter which the Court then may be faced with if you decide here that XXXIV is unconstitutional, I think you're going to have rush of cases attempting to lay out the general principle that the state has to act totally across the board in any area which it wishes throughout.
Justice Byron R. White: Well, we already have one.
Mr. Donald C. Atkinson: In any event, it seems to that what really is involved here is the voting rights of the majority.
Does the majority of a state have the right in a purely internal matter to make a decision as to whether or not they want to have something to which the people don’t have a constitutional or fundamental right?
As far as I know, no case so far has decided that low-rent housing is a constitutional or fundamental right in which the state cannot intrude in any way.
Mr. Cox cites the Shapiro case.
Now, the Shapiro case is not relevant at all it seems to me.
The Shapiro case involved the fundamental right or at least that's what Mr. Justice Harlan thought the Court was doing.
In fact, as I recall in his dissenting opinion in that case he indicated that what the Court there had done was to label the area a fundamental right and then apply a different Equal Protection test on it and Mr. Stewart in a concurring opinion indicated that that was not what the court had done.
They did not label this area of fundamental right.
What in fact they had done was to say or treat an area a personal right that could not be abridged in any way -- the right to travel which was has been established the long line of cases going back well before 1900.
It also calls into play their -- the Interstate Commerce Clause and the right of a state to abridge that in any way.
So, I don’t think that case is relevant at all and I really think we have to get back to this proposition.
Does the state have the right to deal with the poor one step at a time?
Or does it have to deal with then poor totally across the board in every area?
What California has done here is attempt to deal with an -- one area relating to the poor.
It treated it on a piecemeal basis.
It attempted to act within the context of that one area.
Now, so far as I know the case on equal protection are uniformed in stating that there's no requirement that everything be treated exactly the same as long as everything within the class is treated the same.
Now here, you have the class treated exactly the same, the record is unequivocal, there's a stipulation in the appendix, which the Court can read that there are no other publicly-owned low-cost housing projects in California except the type that appears within the confines of Article XXXIV.
So that what we’re dealing with is a self-contain classification rationally founded because of the gap in the constitutional provisions relating to referendum or referenda in California.
Justice Byron R. White: You don’t get the Fourteenth Amendment reaches overbreadth or I mean underbreadth?
Mr. Donald C. Atkinson: I'm not sure I understand your question.
Justice Byron R. White: Well, I mean don’t you think the Fourteenth Amendment requires the comparison of treatment not only within the class but between classes?
Mr. Donald C. Atkinson: Yes, I do. (Voice Overlap) But I will have very, very much difficulty in understanding what is the other class and that perhaps Mr. Lasky will go into that a bit but if we’re indicating that the other class is all projects that are federally funded.
A whole range of different types of federally funded projects some of which there is the right of referendum in fact, with almost without exception there is one type or another involving all different types of money, involving all different types of projects.
Then it seems to me that what the Court would be doing by striking down XXXIV would be intruding its own judgment as far as reasonable minds could disagree as to whether or not this type of projects are different as to whether or not the rational difference is between them.
If the Court says, no, we as a nine wise men here set and we’re saying that as a matter of law that they’re all the same and they have to be treated the same.
Then, I believe that's what the thrust of the opinion would be.
Justice John M. Harlan: Do you have instances in California where or under your Constitution laws certain types of proposition to where a more than majority will (Inaudible)?
Mr. Donald C. Atkinson: We did have -- I'm not quite certain about that Justice Harlan to be honest with you.
Justice John M. Harlan: California I suppose could be used in relation to the Federal Fair Housing Act.
Mr. Donald C. Atkinson: Well, the Federal Fair Housing Act itself indicates that local options requires options and until the local party --
Justice John M. Harlan: No federal compulsion so it has to accept the aid.
Mr. Donald C. Atkinson: Certainly not and that's why the Supremacy Clause of course is not relevant here at all.
In fact, at one time the federal statutes indicated that the people with mentioned referendum specifically, now that is no longer in the law, but certainly there is in the local option -- the federal scheme itself indicates that a local option is not only important here but significant requirement.
Justice Hugo L. Black: I presume you still have counties.
Mr. Donald C. Atkinson: Yes, we have counties and we have cities and districts and so forth.
Justice Hugo L. Black: Under your statute defines what class of people or type of benefits of low-cost housing.
Are the figures in the record as to what the range of income that encompasses among those who are eligible to the procedure (Voice Overlap)?
Mr. Donald C. Atkinson: Not that I know of -- Not that I know of, Mr. Justice Harlan.
In fact, the --
Justice John M. Harlan: How limited merely these indigents?
Mr. Donald C. Atkinson: No, it’s not.
The state local body whoever is developing the project make such judgment and that can vary from place to place and that's one other point if I could just mention this Mr. Justice -- Mr. Chief Justice.
Chief Justice Warren E. Burger: Yes you have considerable time.
Mr. Donald C. Atkinson: Alright.
One of the problems in this case which I haven’t alluded to before that this matter came up on summary judgment.
There was no trial here, there was no evidence introduced.
There are some affidavits in the record, which are found in the appendix.
But the difficulty with the whole thing is that the appellants in this case did not have a sufficient amount of time to really adequately represent their client.
The matter was filed.
There had been particularly a great deal of work done on the pleadings, the research and so forth.
So that this matter was filed in San Jose all fully or fully developed and fully handled so that I would submit that there are number of questions here.
As far as the Court knows now, there's no racial discrimination on the face of the statute.
There is certainly no racially motivated -- well, I'll put it in other way, there's nothing to indicate in fact Mr. Cox admitted that there's nothing to indicate that XXXIV is racially motivated.
So certainly, you can distinguish the Reitman case and Hunter on that ground and that's a very significant ground I think.
Secondly, there's no -- nothing here to indicate that this XXXIV has been unconstitutionally applied or unfairly applied.
As a matter of fact, the record indicates just the opposite.
The majority of the voting matters which have been presented to people in low-rent housing have been approved and as I pointed out to Court yesterday between 1968 and 1970 the number of approvals has significantly increased.
Just because the people might possibly in one area or another decide to turn down low-rent housing and that might or might possibly affect racial minorities.
There's no reason for this Court to strike down a constitutional provision of state.
Chief Justice Warren E. Burger: Thank you Mr. Atkinson.
Number 154 is submitted.
We’ll hear arguments next in 226, Shaffer against Valtierra.
Argument of Moses Lasky
Mr. Moses Lasky: Do I understand that I am or not am not to have an argument?
Chief Justice Warren E. Burger: Oh, yes.
Mr. Moses Lasky: Yes.
Chief Justice Warren E. Burger: Thus, for our purposes we have this litigate as separate case.
Mr. Moses Lasky: Yes.
Thank you, Your Honor.
Chief Justice Warren E. Burger: And I want to make this point you were probably in Court yesterday when I announced earlier prior to the beginning of the argument in 154 that Mr. Justice Marshall reserve the right to participate in this case on the basis of the transcription of the oral arguments and all the other papers.
You may proceed.
Mr. Moses Lasky: Mr. Chief Justice and may it please the Court.
This of course is the identical case of 154.
It is here separately because of the belief of the appellant Shaffer who was one of the City Councilman of the City of San Jose that the other appellants had actually appealed not to get a reversal but in order to get the stamp of approval on the judgment which would have relieve them from an obligation of the state constitution.
Now, as counsel has just mentioned to you, this case was decided on a summary judgment without trial on the most meager record, affidavits which merely identified who the plaintiffs were and some opinion evidenced that there was need for low-income housing.
Counsel has said that the City Council had no opportunity to prepare objectively it appeared that the case was in fact the same case case.
The principle defendant was the Housing Authority of San Jose and the Housing Authority is not only not an appellant but it’s filed to brief in this Court seeking affirmance of the judgment against him.
The case was consolidated with the similar suit, Hayes versus San Mateo in which the defendant defaulted and did not contest.
In the brief I filed in this Court, I submitted that this case lack that immediacy of controversy which justified the Court acting at all and I tried to express it in a combination of terms of standing, of rightness, of friendly suits, of feigned actions and I think the principles I was trying to express were more succinctly summed it up just 10 days are so in Younger versus Harris and that cluster of cases.
However, I leave that and move on to the merits of this case.
I would submit this is a stunning case.
It involves two of the outstanding expressions of American Democracy.
One is the Equal Protection Clause and the other is the right of the people to vote on matters that concern them.
And here we have had one of these the Equal Protection Clause is used to destroy the other.
Now, that's an amazing result in granting if it be assumed and decided that there can be a situation in which the Equal Protection Clause can be used to destroy the right of the people to vote on any subject they want.
This is not that kind of case Hunter versus Erickson which was in expression of that sort of thing is a wholly different case and all it want and needs to do if the Court please is to examine this whole thing in the context of California history and the structure of Government and California.
And I submit that no one and that conversant with California history and California structure of government could’ve made the argument that has been made on behalf of the appellees.
It has been somehow intimated that the mandatory referendum was some strange and unique thing and the fact of the matter is it is the first and original forum of referendum at California.
The petition referendum did not come into existence until the time of Governor Hiram Johnson in 1910 but for 120 years, direct democracy has gone at the very bone and marrow of California Government.
No other state has that been so true, there is not an election in California but what the pubic votes on 15 to 20 to 30 measures.
Now, the leading writer on the Initiative and Referendum in California and Crouch has written that the electorate of this state has been costumed to expressing itself on matters of state and local policies and the state government was first established.
Now, it’s because of this historical fact that our adversaries have sought to draw this distinction between what they call the review or petition referendum and the automatic or mandatory referendum.
And they have conceded that there would be no unconstitutionality of Article XXXIV had a petition referendum.
That distinction will not hold --
Justice Hugo L. Black: If it had what?
Mr. Moses Lasky: Pardon me?
Justice Hugo L. Black: If it had what?
Mr. Moses Lasky: A petition referendum rather than the automatic referendum, I understand the appellees have conceded that they would have no case.
I understand they now predicate the case on the fact that on referendum Article XXXIV requires is mandatory.
Chief Justice Warren E. Burger: I'm not sure he went quite that far, I thought --
Mr. Moses Lasky: Well, in Housing Authority’s brief, if the Court --
Chief Justice Warren E. Burger: -- it would be a much different case.
Mr. Moses Lasky: Well, let me read you something from the brief of Housing Authorities in appellee.
It is this unique automatic referendum requirement that makes Article XXXIV offensive to Equal Protection Clause.
At least Housing authority has gone that far.
The automatic referendum is not unique, California has had both kinds of referendum and the automatic form is the older.
Crouch whom I referred to a moment ago says, three types of referendum are found in sake practice “that use was greatest frequency is known as the compulsory referendum.”
This type is being used since the beginning of state government in California.
Now, examine the situations in which the automatic referendum had been used and you'll find they classify into three classes that all constitute one.
First, matters having to do with the disposition of public property; second, creation of physical burdens on the general taxpayer; and third, the distribution of the powers of the sovereign people among their several agencies.
In short, wherever the Government may be said to be acting upon itself California has insisted upon the automatic referendum.
Counsel yesterday referred to the City Charter of San Jose about no park can be disposed off without a mandatory referendum.
Franchises cannot be granted without a mandatory referendum.
And here, we have all three -- disposition of public property we’re dealing with the public does on our house.
Here, we deal with imposition of burden on the general taxpayer.
Now, there’s been some contest in the briefs about that, but what happens is that in order to get a housing low-income housing project, the city or the county must waive taxes for 40 years and commit itself to provide all municipal services and the calculations have been that the contribution of the city or county to that project is equal to at least 50% of the contribution of the federal government.
And that's a burden on the general taxpayer.
Secondly, it has to do public to disposition of public property and it certainly has to do with the distribution of government powers.
And thus, it will be as observed at once that the automatic referendum of Article XXXIV is applied to the very kind of subject matter to which it has been tradition on California.
Now, turn our attention --
Justice Byron R. White: Mr. Lasky, I take it part of your argument that is that the subject matter of this automatic referendum indicates that this scheme is not a discrimination against the poor --
Mr. Moses Lasky: Yes.
Justice Byron R. White: -- any more than for example the automatic referendum on municipal bonds.
Mr. Moses Lasky: Exactly so and I’ll come to that develop it more fully.
I would like to point out the nature of the petition referendum which came here under Hiram Johnson.
That has to do generally with the exercise of the police power wherever the government regulates the conduct of private parties not themselves, that's what the petition referendum deals with.
Now here, we have the situation where a gap was discovered.
When the Housing Act was first enacted, it was thought in California that projects were subject to the automatic referendum relating to bond issues.
And in 1937 or 1939 the Supreme Court of California said no and they did it upon the basis that a housing authority is not a city or county and the Constitution was cast in terms of city or county.
Well, this is another example where the words of the 1879 Constitution have been eluded by new and genius devices.
But the people of California were in trouble because they thought we at least have the petition referendum that would apply.
And then on 1950, the Supreme Court of California said no, the petition referendum doesn’t apply because it applies to legislative acts and we construe this is administrative or executive.
Thus, the people found they had no referendum and with, at the very next election in 1950, this XXXIV was adopted.
Now, what motivated them? We have in the record the official ballot arguments in California.
The ballot goes to the public or people with official arguments and there it’s in the record, it’s in the brief and if you read you'll find it’s all summed up two or three times to the expression “to restore” to restore to the people.
Strength in local self-government can restore to the community the right to determine its own future course “restore to the citizens” the right to decide and they refer to the traditional right of Californians to pass on matters of this general character.
Now here was a gap.
California wanted to fill the gap.
It had two presidents as to the type of referendum it should adopt.
It had the old precedent of the mandatory referendum, it had the later precedent of the petition referendum and it chose the one and not the other and I submit there is nothing in the Fourteenth Amendment that bent California’s arm and said you must adopt the one instead of the other particularly in view of the fact that this situation isn’t keen in all its nature to the thing is to which the mandatory referendum was a characteristic.
Now, let's ask this question, was there any improper motive in the adoption of Article XXXIV?
It has been conceded that the record shows no such and I go further.
This case was decided among summary judgment and this Court has repeatedly decided Pauler (ph) versus CBS, the Fortler (ph) case that on summary judgment adverse imputations of motive can never be taken.
Therefore, there can be no motive -- no imputation of an improper motive in the adoption of XXXIV, nor can there be any imputation of improper motive of the voters in voting on housing projects.
I would submit that the very thought of courts inquiring into vote or motives would be intolerable.
Since there can be no determination of the improper motive, let's inquire as to effect.
The record contains and it came in by judicial notice was offered as evidence the figures on votes, on projects from the 1950 to 1968 and it’s in the record to the appendix at page 34 and you'll find several pages showing all the elections.
The court below said, well it showed that 48% of the units were turned down, but what it showed was its 69% of the elections carried.
And the reason there was a disparity on the units was a monstrous 10,000 units in Los Angeles have been turned down the kind of project which the Housing Authority is now are ashamed off.
The record -- if you take the same judicial notice, you'll find that in all of the projects voted on from 1968 through 1970 84% were carried and the record also shows that of the 11 elections that occurred on a ballot of California on the same day that San Jose voted on this all but the San Jose carried.
Now, you cannot take those statistics and say that the voters of California had been using this law as a method of discriminating against race or against poverty.
The statistics in the record are just the contrary. Consequently, I submit to the Court that this amazing judgment can be affirmed and the federal power can be use to upset the structure of state government if and only if on bare comparison of the face of Article XXXIV with the Fourteenth Amendment unconstitutionality is absolutely unavoidable.
Now, that’s the precise kind of treatment of this Court 10 days ago or eight days ago in Younger versus Harris said should be indulged in very cautiously indeed.
“For Younger versus Harris procedures for testing the constitutionality of a statute on its face and for then enjoining all action to enforce the statute are fundamentally at odds with the function of the federal courts in our constitutional claim.”
Now, I come to the question Mr. Justice White that you put to me a few moments ago.
On what basis is Article XXXIV said to deny Equal Protection?
Who does it discriminate against and whom does it discriminate in favor of?
There is a no claim that it discriminates among the subjects to which it relates.
That subject is low-income housing and all are treated alike.
There is a no claim there can be no claim at California treats low-income housing differently from it treats other housing for one reason.
California doesn’t have anything but low-income housing.
Now, there have been statements in the briefs and then argument that little income housing is favored by loans from the federal government, that’s the federal government.
The federal government has the power to deal directly what the people if it wishes or to deal through the states.
On middle-income housing, the federal government chooses to go directly to the people.
California has nothing to do with that.
On low-income housing, the federal government chose to say to the state I offer you our assistance if you choose to take it and California says, we choose to take it only on the vote of the people.
And so California treats all housing it deals with alike.
With one possible exception in the case of blighted areas under Urban Renewal after the place has been torn down, other housing is possible and it’s never been done.
It’s never been done and if the time to talk about discrimination might arise if and as sometime in the future something like that happen.
So, what does the claim come to?
The claim comes to this, that there no mandatory referendum is required of some other kinds of government activity and I submit that this is no more at a claim that it is unconstitutional to require a mandatory referendum or anything unless required of everything.
And that of course flies in the face of numerous decisions of this Court including this Court’s decision of 1970 in Dandridge versus Williams where the Court said that we are dealing with social and welfare matters.
The usual way of handling Equal Protection applies if you can -- any rational justification with the classification will hold.
And I've given more than rational of justification.
I submit I've given overwhelming justification.
That brings me to Hunter versus Erickson which of course must be dealt with and I say that the resemblance between this case and Hunter is the most superficial thing based upon mere catchword of an automatic referendum.
And I say that Hunter once you get over hurdle of whether you can strike down the right to vote at all.
Hunter versus Erickson was an obvious case and for this reason first place the motive in Hunter was racial discrimination.
The City of Akron had an ordinance prohibiting racial discrimination on housing and the very purpose of the charter amendment there was to repeal that and subject racial -- subject legislation about racial discrimination of the special treatment.
And this Court said in the opinion there was wan explicitly racial classification that does not exist here.
Secondly, Akron already had a general referendum statute that was applicable.
The petition, the voters already had a voice and the charter change that to make it more onerous.
The purpose of the amendment was to apply to anti-discrimination legislation a different procedure.
Here, California had no voice of the people before Article XXXIV.
It had to adopt something and I come back to my statement, it had a right to draw on either of the two precedents and it chose one and not the other and its choice was rational.
It was rational not only because we were dealing with the FISC, it was rational because we were dealing with questions of the whole environment which people live.
Housing projects can change that environment forever and certainly people ought to have a right to have voice.
Now, counsel has said housing people are now spreading the units out and are no longer indulging on a mass institutional stuff which all people now condemn.
But for 20 years, they were using the mass institutional to housing and that the people were wiser on rejecting projects.
They were wiser than the experts and the experts who just caught up.
Now, I'm not arguing in favor of one kind of housing and another, I say these are the kind of considerations which justified putting to the people who are the ones to be affected a decision on what they want.
Justice John M. Harlan: Mr. Lasky?
Mr. Moses Lasky: Yes, Your Honor?
Justice John M. Harlan: If you were to prevail in this case what disposition do you think this Court should mandate?
Mr. Moses Lasky: I think this Court should order a dismissal of this suit entirely and I think that if the -- our opposition wishes to test this question further, they should do it in a traditional way.
The Housing Authority should either refuse to issue bonds and someone should mandamus them or the housing authority should try the float bonds and someone should try to enjoy them, or it should try to float bonds and then sue the banks that refuse to take them because of a lack of vote.
Then you could get this question decided in the context of a real controversy, that's my submission to your question of the proper disposition of this case.
Justice Hugo L. Black: You say this question, would you mind stating as precisely as you can what you think this question is?
Mr. Moses Lasky: Yes, the question before the Court?
Justice Hugo L. Black: Yes.
Mr. Moses Lasky: The question before the Court here is whether the Equal Protection Clause requires California’s referendum requirement on housing to be invalidated on the theory that somehow it discriminates improperly against something or somebody.
Justice Hugo L. Black: Does that relate entirely to the referendum?
Mr. Moses Lasky: I think so.
Justice Hugo L. Black: You said referendum, does it relate entirely to the referendum?
Mr. Moses Lasky: Well, it relates the question whether you can -- the constitutionality of submitting this Court require these questions should be voted on by the public.
Justice Hugo L. Black: Is that the total issue, does it refer to any denial of Equal Protection and the way the law will operate if it’s adopted?
Mr. Moses Lasky: No, Your Honor.
That is not involved here.
That is not -- in other words, --
Justice Hugo L. Black: What is the precise question as you see it on which it is claimed that a submission of this matter to the people is unconstitutional as it unlawful discrimination?
Mr. Moses Lasky: The question is we have phrase it in our brief (Voice Overlap).
Justice Hugo L. Black: But I’d rather you just state it because I have heard a lot of argument.
Mr. Moses Lasky: The question is --
Justice Hugo L. Black: I have difficulty in understanding it completely.
Mr. Moses Lasky: The question is whether the California’s Constitutional provision stating that there may be no housing project without at first an affirmative vote of the people violates the Equal Protection Clause of the Fourteenth Amendment, that’s the question.
Justice Hugo L. Black: That’s the only question?
Mr. Moses Lasky: Sir, that’s the only question.
Another question has been raised about the Supremacy -- the Supremacy Clause but no my opposition has not chosen to argue that so I don’t see any need of discussing at all.
Justice Hugo L. Black: I suppose the state legislature had passed alone to build a housing project just exactly as this one would have been built if the election should pass that way referendum, would there be any claim as you understand it that that law denied Equal Protection?
Mr. Moses Lasky: Do you mean if the legislature --
Justice Hugo L. Black: Legislature had pass the law to put in effect precisely the thing it would be put in effect to some people vote affirmative year, would that deny -- is that argument, is that for denial (Voice Overlap).
Mr. Moses Lasky: I think that’s implicit in the argument of my adversaries if I understand question, if the requirements of Article XXXIV were imposed by state statute?
Justice Hugo L. Black: Yes.
Mr. Moses Lasky: My adversaries would argue that that’s unconstitutional.
Justice Hugo L. Black: He would?
Mr. Moses Lasky: Yes.
Justice Hugo L. Black: Then it’s not altogether then on a fact that there's a referendum?
Mr. Moses Lasky: Well, I --
Justice Hugo L. Black: I'm trying to find it exactly what it is.
I'm not been able detect it yet in either argument.
Mr. Moses Lasky: Well, as I understand the contention which was adopted below, it is that when the elected representatives of the people whether state or local adopted the project it must go into effect and it’s unconstitutional to say it must also have an affirmative vote of the people.
Now, that’s what I understand the contention to be, and as I understand, the court below to have held.
Chief Justice Warren E. Burger: You're saying that argument presupposes that the agent has more power than the principle?
Mr. Moses Lasky: Exactly so.
In other words, California has said we delegate to our agent the Local City Council the power to initiate a project but we reserved to ourselves there were final word and we are being told that it’s unconstitutional for the principle to reserve that because for soothe in other matters such as highways, schools, hospitals that haven’t reserve any thing except the petition referendum.
Justice Hugo L. Black: But what has -- what does the argument based largest been based on a fact that this is discrimination against the poor?
Mr. Moses Lasky: Yes.
Justice Hugo L. Black: Whatever the poor is?
Mr. Moses Lasky: Yes.
Justice Hugo L. Black: I don’t exactly know that they define the law, but they say it’s a discrimination against the poor.
Is the discrimination the referendum?
Mr. Moses Lasky: Yes.
Justice Hugo L. Black: Or the law that would be passed?
Mr. Moses Lasky: No, no, they claimed the discrimination against the poor is requiring a referendum.
Justice Hugo L. Black: Why?
Mr. Moses Lasky: That’s what I’ve never been able to seek, why?
But their argument runs like this --
Justice Hugo L. Black: For some argument of course.
Mr. Moses Lasky: Their argument is that other people presumably the rich don’t have to go to a referendum.
If someone wants a highway or he wants a hospital or he wants public education assistance, he doesn’t need to do this.
But there's no discrimination here because this subject deals with the poor poverty is a sociological and political and the economic circumstance that wants government action.
Now, when the Government turns its attention to that problem certainly the state governments have the widest discretion as to how they should handle it, how far they should go, what they should do, what preliminaries necessary before anything is done.
Justice Byron R. White: Mr. Lasky, let's assume that California had no referendum law whatsoever except an automatic referendum with respect to public housing projects.
Now, based on your argument, I would take you would say the state was perfectly entitled to do that.
Mr. Moses Lasky: I think so, in other words if we wipe legislative history clean and this is the first time California went for referendum.
The question then would be must the states structure of government treat everything alike.
And my answer to that is this, the Equal Protection Clause --
Justice Byron R. White: You would say there certainly they were treating certain subject matters different?
Mr. Moses Lasky: Treating subject matter is different, yes.
Justice Byron R. White: Yes.
Mr. Moses Lasky: But I can see the Equal Protection --
Justice Byron R. White: But do you know any state that doesn’t treat subject matters different?
Mr. Moses Lasky: Pardon?
Justice Byron R. White: Do you know any state of the union that doesn’t create some matters differently?
Mr. Moses Lasky: No, we got what the Court is being asked to here is to take a microscope and a micrometer and to take the whole corpus of legislation and look at each one and to determine how the differences are between the one and the other.
Justice Byron R. White: What would you say if the California had no referenda at all and suddenly it required that anti-racial discrimination measures be subjected to a referendum and no other subject matters are required to do so?
Mr. Moses Lasky: I would say thoroughly unconstitutional.
Justice Byron R. White: Why?
Mr. Moses Lasky: Why, because the Fourteenth Amendment directs its thrust at racial discrimination and because the Fourteenth Amendment has singled out racial discrimination.
Justice Byron R. White: But what if?
Mr. Moses Lasky: This Court has --
Justice Byron R. White: What if the law said instead of saying racial or anything that has to do with welfare or poor relief must have automatic referendum?
Mr. Moses Lasky: No, I think that would be perfectly constitution.
In other words, if its --
Justice Byron R. White: What if it weren’t then you're in trouble here a little bit, aren’t you?
Mr. Moses Lasky: If what?
Justice Byron R. White: What if it weren’t constitutional?
You’re in some trouble here, aren’t you?
Mr. Moses Lasky: No, I have taken -- you asked me a question that wipeout slate of California history.
Justice Byron R. White: Yes.
Mr. Moses Lasky: And I even then I say it be constitutional.
But if this Court were to take that case if it went on the rows now to be unconstitutional I would say you can't wipe up the slate of history.
I think in a decision Your Honor may have written Carter versus Jury Commission.
It was remarked that here was a device of ancient vintage and that it had not been used with any improper motives and that's exactly this case we’re dealing with the device of ancient vintage and it cannot be demonstrated that there's any improper motive.
Now, let me add one thing further.
To talk about discrimination of the poor as if the poor was a group is to my respectful submission nonsense.
Your Honor, the highways, hospitals benefit the whole public.
They benefit the poor as much as anybody else.
Low-income housing benefits the whole public, that’s why it justified constitutionally and to say that this forces upon the poor a burden is more nonsense because the people who back low-income housing projects are a veritable poverty, industrial complex and if you look at the mass of people who sought to file amicus briefs in this Court on the other side, you'll find AFL-CIO, National Association of Architects, Building Materials Manufacturers, if you had the record taken in evidence in this case, you would find this project, the election more money was put up for then against and most of it was put up by Tile Companies and Unions.
Justice Byron R. White: I know but what is the -- what does the low-rent housing project cost to State of California as a state out of its tax funds?
Justice Byron R. White: These projects are done locally not by the state.
Justice Byron R. White: Yes, well I'm including all the state --
Mr. Moses Lasky: And the burden comes in upon the fact that the services, municipal services have to be supplied and taxes are waived and closest anyone has been ever been able to estimate is that the burden on the California taxpayer is equal to 50% to 60% of the total amount of money, the federal government itself contributes and beyond that I have no figures, I'm unable to give them.
Justice Byron R. White: But no additional -- there’s no appropriation of tax monies except for what -- for services?
Mr. Moses Lasky: No, there’s no appropriation of tax money because the bonds which are issued advancely paid by the federal government which supplies the money.
Chief Justice Warren E. Burger: Let me be sure I understand this factual situation.
You say there is a no other type of public housing or any kind of housing which can be submitted to a referendum in California?
Mr. Moses Lasky: California has no other kind of public housing except low-income housing with the exception I mentioned the law would permit some when you restore a blighted area under Urban Renewal and I think --
Chief Justice Warren E. Burger: This is under a different act in trial?
Mr. Moses Lasky: Yes, different act.
And then under I think agricultural labor, there’s some provision about providing housing for agricultural labor but this obviously benefits the poor too.
So, this is all California has.
Now, if there's discrimination against, there must be discrimination in favor of somebody.
And the question is whom does this discriminate in favor off.
You can't find an answer to it.
It doesn’t discriminate in favor of anybody.
This is an attack on a structure of Government and I submit that the Equal Protection Clause primarily has to do with the application of the law.
It says the law shall be laid -- the lash of the law shall be laid on the backs of everyone equally, the privileges of the law shall be given to everybody equally.
This case presents a different kind of question which is, is the structure of Government such that everyone has an equal opportunity to obtain advantages.
Now, I am not prepared to say that that question can never be asked but I do submit that it must be an extraordinary case, an extraordinary case indeed coming upon record of evidence that would justify the intrusion of the courts into that field.
And although my time has not expired but this what I has, I submit that this judgment should be reversed.
Justice Byron R. White: Mr. Lasky, do you have any comment about Reitman against Mulkey?
Do you think that has any implications to the dispositions of this lawsuit?
Mr. Moses Lasky: None, whatever.
Reitman versus Mulkey was a case that came to this Court upon a construction of the constitutional provision there which said as so construed that the right to discriminate was now to be constitutionally protected in California.
It was on that construction that I read this Court decision to go off.
So I don’t think Reitman versus Mulkey has slightest application.
The only case I think one has to consider here is Hunter versus Erickson and I think that’s clearly distinguishable.
Chief Justice Warren E. Burger: Thank you Mr. Lasky.
Rebuttal of Archibald Cox
Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.
The precise question in these cases as I understand it is whether the state may require local government action which would provide public housing for the poor, for persons of low-income.
Justice Hugo L. Black: Who are the poor?
Mr. Archibald Cox: Under the standards in the federal statute one can take roughly the $4,000.00 level of income as eligible for low-income housing.
There are our standards that I set forth in the statute.
The questions is whether the state or rather -- yes the state may require local government action providing low-rent housing for the poor to run the gauntlet of an automatic referendum not required in the case of governmental action.
In behalf of any other group in the community and we think because of the fact that this is housing for the benefit of persons of low-income and Article XXXIV is limited to that case that this is a situation where a one combines a discrimination in the processes of government with an invidious classification which distinguishes a great many other cases.
Justice Hugo L. Black: Then it is in the referendum alone?
Mr. Archibald Cox: It is the referendum.
Justice Hugo L. Black: Alone?
Mr. Archibald Cox: And the special referendum to these people which we complain of as the unconstitutional discrimination in this case, yes.
Justice Hugo L. Black: Suppose that had been referred to a county?
Mr. Archibald Cox: Well, the action normally is taken by the county or by the city and there can be no low-rent housing without at least two favorable votes by the County Board of Supervisors or the City Council.
Indeed, that's the way we contend that it should be done.
It’s this extra obstacle.
Justice Hugo L. Black: What about the stock law that refers to a county all people do not own a stock?
Mr. Archibald Cox: Oh!
Justice Hugo L. Black: I didn’t think of that
Mr. Archibald Cox: That’s alright Mr. Justice.
Justice Hugo L. Black: (Inaudible) Stock laws -- county stock laws?
Mr. Archibald Cox: I'm not -- I now understand what you mean by stock but I don’t understand the question, I'm sorry.
Justice Hugo L. Black: Well, the question is that suppose you had state would it pass a county option law on stock laws that people --
Mr. Archibald Cox: Oh, we’re not complaining in anyway of local option down the list.
There's no complaint about this being a matter of local option.
This indeed is the matter determined by local self-government and even if Article XXXIV that's wipe up of us.
Justice Hugo L. Black: I gather, you're doing it because they refer to the people the right to vote on some things that do not refer on other things, is that it?
Mr. Archibald Cox: And do not and they said up to the classification invidious terms.
In terms of this being a benefit for people of low-income.
I'm not suggesting that there can be no neutral classification, no neutral principle that would call for a referendum in certain kinds of case.
The bond issue case seems to me to be accord -- to conform to a neutral principle.
I would think the referendum that's called for in one or two cities in California for on any question of giving away park lot.
Probably, it rests upon a neutral principle of disfavoring the disposition of open parks and property.
Justice Hugo L. Black: What do you mean by neutral principle that's (Voice Overlap) that's another expression I have not been able wholly to understand?
Mr. Archibald Cox: Well, I'm referring of course the opinion of Justice Stewart and Justice Harlan in Hunter and Erickson.
I mean one that is non-invidious, one that is not rest upon distinctions against disfavored classes.
Race was the one involved there.
We say that they have that case identical with this case except that here it’s persons of low-income.
Justice John M. Harlan: You really go that far to say this case is controlled Hunter and Erickson?
Mr. Archibald Cox: Except for the fact that in the first instance the disfavored class here is the poor rather than in terms of race.
I do think there's no other difference Justice Harlan.
Justice John M. Harlan: It’s also a considerable other difference, I would say at park mechanics, I should think. You know how the case is but you keep talking about the word “poor”?
Do you know of any cases which that characterization on an equal protection case is referring to other than indigence that goes technical sense in there?
What are the cases that you think of?
Mr. Archibald Cox: Well, --
Justice John M. Harlan: I think in Harper against Virginia, the polling tax case’s rhetorical language.
But give me another case where the word “poor” which is the premise of your argument has been held to include people whose income as by your own statement, $4,000.00 a year.
Mr. Archibald Cox: Much of it often welfare money of course.
Justice John M. Harlan: Sorry.
Mr. Archibald Cox: Much of it often welfare money of the $4,000.00 a year.
Chief Justice Warren E. Burger: Which being non-taxable, I may suggest is more than $4,000.00 a year for you?
Mr. Archibald Cox: Well, it might be.
It doesn’t enable if you read the affidavits in the record of the conditions under which these people are living.
I suggest that they are indigents in the most realistic sense of the word.
I point out too that the Court, Mr. Justice Harlan has referred to property classifications, classifications of wealth in Kramer, in Cipriano, and the Phoenix case and others as classifications that are suspect and at some cases has drawn that kind of line.
Justice Byron R. White: May I ask, Mr. Cox.
Do I correctly understand what you're attacking is not that there is a referendum but that California has said that the referendum in this instance must be mandatory whereas as to other subject matter, it permits a petition, precisely one (Voice Overlap)?
Mr. Archibald Cox: This -- the relationship is just the same as in Hunter and Erickson.
Justice Byron R. White: Well, I suppose then if this particular subject matter were subject to a petition referendum but no other subject matter was subject to any referendum?
Mr. Archibald Cox: Then we would be making the same argument.
Or as you suggested earlier, if this provided that there must be votes by five successive Boards of Supervisors, we would be making the same argument.
Justice Byron R. White: But since California does have the petition referendum for a lot of subjects (Voice Overlap) and this also were only subject to a petition referendum then you would not be?
Mr. Archibald Cox: Then I could not make the argument I'm making now and the Chief Justice stated that very precisely earlier (Voice Overlap).
I’m saying there could be no argument.
I could not make the argument I'm making today.
Justice Byron R. White: Then you might be here but on a different ground?
Mr. Archibald Cox: It would have to be on a different ground, that's correct.
Chief Justice Warren E. Burger: Would you care to very suggest what that might be just to delineate?[Laughter]
Mr. Archibald Cox: Yes, I think it would -- we would probably take it to the Supreme Court of California and we would rely chiefly on an opinion that I should refer Your Honor is to in the San Francisco Unified School District against Johnson in 92 California Reporter 309.
I refer to that case, it’s not -- it doesn’t deal with Article XXXIV I don’t want to mislead you, but it does indicate that the Supreme Court of California might well invalidate Article XXXIV on the ground that if permits and even invites people to vote against low-cost housing on racial grounds.
The California Court says that inviting people to vote in referenda or to take action generally was there speaking of parents refusing to allow their children to be assigned outside a neighborhood school district.
Justice Byron R. White: Are you suggesting there are unresolved issues in California constitutional law?
Mr. Archibald Cox: No, because -- No, no, it’s simply a matter of federal constitutional law.
There's no question of California constitutional law because this in the California Constitution.
There was no question of California constitutional law I believe in that case, it was decided on the federal government.
Justice Byron R. White: The California decision was the equal protection issue?
Mr. Archibald Cox: Yes.
Yes, so that's one ground and would probably be the primary ground of attack here.
Let me elaborate; add a little more length the matter of the mandatory referendum.
Mr. Lasky says that there are other instances of mandatory referendum and of course he's right.
He describes one as that disposition of public property.
What he means of course is the occasional provision in a city charter which deal with the disposition a part property.
There's certainly nothing in common between that case and this one.
He speaks of burdens on the general taxpayer, the only, the section he refers to is the provision of the California Constitution which requires a referendum when an issue of bonds or other general debt chargeable against the government state or local government is involved.
And we point out as I suggested yesterday, many instances where land is taken off the tax rolls and there maybe some increase demand for municipal services which does not require a referendum in California.
Incidentally, Justice Harlan, I believe that that case involving the California bond issue and the requirement of a two-thirds vote is presently before the Court in Westbrook and Mihaly.
I don’t know whether it’s been argued yet but the matter is here.
Then the third category that he refers to is changes in the boundaries or constitution of local government.
I know nothing in common between this case and that.
This case has the characteristics that I refer to before, the built-in disadvantage, the invidious classification, and the inability to explain it by any neutral principle.
Justice John M. Harlan: What was your --
Mr. Archibald Cox: Now, I’d like --
Justice John M. Harlan: Could I ask you a question, Mr. Cox?
Mr. Archibald Cox: Of course.
Justice John M. Harlan: What would you say about a California statute, you said all social welfare like decision that would be submitted would appear to one of the legislature?
Mr. Archibald Cox: Well, I would wish to know what social welfare legislation meant Justice Harlan.
Justice John M. Harlan: Deliberately, but that it seems to me the term is more after your classification of poor than as to what I’ve always understood the equal protection classification to employment.
Mr. Archibald Cox: Well, I don’t like to evade the -- I really do find it difficult to know just what you mean by social welfare legislation because of our unemployment insurance laws --
Justice John M. Harlan: I'll take it the narrow when you say that (Inaudible).
Mr. Archibald Cox: Well, then I hope --
Justice John M. Harlan: (Inaudible)
Mr. Archibald Cox: Well, then I have Hunter and Erickson.
Justice John M. Harlan: It’s the same case you got here?
Mr. Archibald Cox: I think Hunter and Erickson is the same case we have here, yes.
Chief Justice Warren E. Burger: Well, it’s the same case on a fair housing, is it the same case on low-housing?
Mr. Archibald Cox: Oh, maybe I didn’t --
Chief Justice Warren E. Burger: I'm not sure you followed Justice Harlan’s --
Mr. Archibald Cox: I did.
I thought he said fair housing, I'm very sorry.
If it said that all low-rent housing and said nothing more of, I would then have virtually the same case I have now except that this is facial discrimination of which I do find particularly offensive somehow putting a brand but I think it be in substance.
The same case probably that difference is by (Inaudible) rather than the real one.
Chief Justice Warren E. Burger: Well, may I alter but pursue Justice Harlan’s point to a more specific question.
Suppose the provision required the two-thirds vote for any program for Aid to Dependent Children or people of comparable categories, straight welfare as we know the word.
Mr. Archibald Cox: I say, I think I would give the answer that I gave before Mr. Chief Justice that singling out interest of the poor whether they are defined as social welfare and that's all that one means and saying that they must be treated differently in the process of reaching decisions in government.
Apparently, just because it is the poor or those who need the protection of social welfare legislation is invidious.
Now, here I do have and I don’t want to give way too much.
Here, we do have some closer comparisons to make.
Let me devote myself for a few minutes to the argument.
Well, what is the discrimination?
What are the two things that this discrimination between?
And there are four points I would like to make in this connection.
The first is that California draws a much nicer line that much of the appellant’s argument supposes.
Under Urban Renewal projects, it is very common for a public authority to acquire a site, clear it, and sell it at less than cost to a private operator who constructs a multi-unit housing upon the track such as high rise apartment and the sale less than cost is clearly a form of public subsidy.
There is upper income housing on Urban Renewal sites at Sta. Monica shores; Bunker Hill which I found in my amazement was in Los Angeles and not Charleston, Massachusetts, Seaside, Diamond Heights, Glen Park were nominated for example.
Now, another thing that is done --
Chief Justice Warren E. Burger: Well, are they subject to a referendum?
Mr. Archibald Cox: No.
Chief Justice Warren E. Burger: Well, is the original Urban Renewal --
Mr. Archibald Cox: No.
It maybe, I guess it is subject to a petition referendum.
I think I'm not certain of that but I know it is not subject to an automatic referendum.
Chief Justice Warren E. Burger: I have an expression for what Mr. Lasky said that my petition it could be submitted.
Mr. Archibald Cox: Well, yes and again of course, our case would be entirely different.
Chief Justice Warren E. Burger: What is the difference between a mandatory and a petition?
Mr. Archibald Cox: Well, their difference is --
Chief Justice Warren E. Burger: For these purposes?
Mr. Archibald Cox: Differences are three.
One is that those who oppose this step was must go out and get the 5% or 8% of the voters and have the burden of carrying.
A second difference which may be somewhat formal, but which I think as psychological significance under the mandatory referendum, you can't do anything until an affirmative vote is been held, whereas the petition referendum in a fact shall we over turn what our local authorities have gone.
And then the third point, as I suggested yesterday, the mandatory referendum under Article XXXIV works only one way.
Now, there are other kinds of housing --
Chief Justice Warren E. Burger: Well, of course the State of California might, I would assume might provide that a petition referendum could be initiated by the signatures of 100 registered voters and that would be almost a formality, would it not?
Mr. Archibald Cox: Well, if it was cut down to that small number, then there might be a different case, but I suggest that 5% to 8% is not a mere formality.
Again, of course I cite Hunter and Erickson as authority for that proposition.
I think those who tried to get 5% or 8% of the voters on signature would agree that it is not just a formality.
Now, I can go a little further on the matter of housing not only is the matter of transferring the site at less than cost under Urban Renewal.
But there are occasions when the construction itself is subsidized by FHA conventions which reduced the interest that the real estate development has to pay because the FHA pays the difference between what he can pay in the way of interest from the rents and what a mortgagee would require.
And sometimes there are rent supplements paid in such cases.
If the sponsor is a non-profit institution and there are projects being developed this way then the interest rate is lower.
And often there is -- what in fact is an important aid and that the federal government takes the mortgage when no one else will.
Now, I'm talking about vagueness that the California municipalities are involved in because it’s Urban Renewal land.
And in these cases, I really don’t see any relevant difference between the middle-income housing project and the low-rent project which Article XXXIV has aimed.
Both are housing, both have at least some attributes government projects, both are publicly subsidized and I've not yet heard anyone suggest why the difference and where the title resides.
I should make justify a difference in their treatment in local government.
Chief Justice Warren E. Burger: Does middle-income housing involve a waiver of all taxes?
Mr. Archibald Cox: No, there is a difference but I point out again the very large number of instances in which land is taken off the tax rolls by public or private action.
And California doesn’t require automatic referendum then.
The second point that I would emphasize simply by way of recalling it is I pointed out yesterday, other government action having all the characteristics of low-rent housing except the involvement of the poor is not required to go to an automatic referendum in California.
In other words, no matter what comparison you make, other groups aren’t treated the same.
Justice Potter Stewart: You mean highways and so on?
Mr. Archibald Cox: Highways and airports --
Justice Potter Stewart: The sort of three-judge court talked about?
Mr. Archibald Cox: Yes, but not just federal also state changes it -- yes?
Justice Potter Stewart: But it’s -- you can't -- well, if you want to say that they are comparative you can say their comparative which is there is no other kind of housing that subject to legislation is there in California?
Mr. Archibald Cox: I just described the closest (Voice Overlap) that I know.
Justice Potter Stewart: The closest?
Mr. Archibald Cox: That's true.
But then I think there's a further point Justice Stewart.
I think the appellant’s argument and our inability to point to some exact comparison where the only difference is the involvement of the poor that that difficulty has got over by Hunter and Erickson.
Rarely, the claim that we can't show that discrimination against the poor results from the Article XXXIV because we can't show any high income housing owned by the Government just like this is sort of a pale copy of the argument that the Akron Charter Amendment was nondiscriminatory because whites as well as blacks, Protestants as well as Catholics who were seeking fair housing legislation had to go to a referendum.
Here is that the reality is that the law’s impact falls under minority.
Justice Byron R. White: Well, Mr. Cox, would you have the same argument if the California had simply said that all changes in zoning of laws must be submitted to an automatic referendum.
That’s the only category of law is submitted to the automatic referendum and everything else is by --
Mr. Archibald Cox: Then if a public housing -- we wouldn’t because if a public housing project within the zoning line could be built --
Justice Byron R. White: The property owner comes along and says, this is a classification strictly on property owners.
It’s no different in poor classification and it’s just invidious as you were arguing about a couple of years ago in the poor case.
Mr. Archibald Cox: Well, I don’t -- I would submit that it wasn’t as invidious.
Justice Byron R. White: You can have some classification based on property owning rather than --
Mr. Archibald Cox: I think property development and zoning laws affecting property development are too much less --
Justice Byron R. White: But you can't have classification based on non-property owning?
Mr. Archibald Cox: Well, I wouldn’t say that there could never be any classification based on non-property owning.
I want to know in what context it did arose and also what subject it related to.
Justice Byron R. White: Well, this context --
Mr. Archibald Cox: Well, in this context [Laughter Attempt] I think that it’s a discriminatory classification.
Justice Byron R. White: If this case involved both with a law subjecting zoning laws to the automatic referendum and the subject matter that’s here now, you would sustain the one and strike down the other.
If this case had both issues in it there were two -- the provision of the California constitutional provision subjected to the automatic referendum low-rent housing --
Mr. Archibald Cox: All changes --
Justice Byron R. White: -- subjected the automatic referendum low-rent housing and all changes in zoning laws?
Mr. Archibald Cox: I would think that one could be sustained and the other should be rejected, yes.
Because I think the zoning laws is a sufficiently broad in general subject that it does not single out people who are subject to prejudice in order to discriminate against them in seeking their needs.
May I develop that part people who are subject prejudice just a little bit further?
This of course is a law which raises a -- puts under a legal disadvantage persons who are in the low-income group.
It’s not an argument here that the law works harder on those who have that money than on those who have it when the law is written in a nondiscriminatory fashion in its terms.
Second, it seems to me that when speaking of the political process or the structure of government it is proper to characterize the poor as an insular and discreet minority.
That phrase has been used in constitutional law.
Next, I would emphasize that discrimination against the poor is in very large degree -- a form of racial or religious discrimination.
It’s in fact, all over the country minorities form a disproportionate part of the poor.
The Douglas Report stated that it is of 1967, 41% of the poor using the $4,000.00 limit to describe the poor; 41% of the nonwhite were poor and only 12% of the white.
If you look at the population as a whole, 32% are poor nonwhite -- no, 32% of the nonwhite are poor and only 12% of the general population is nonwhite.
In Sta. Clara, one find is looking not at the black population but at the Mexican-Americans that 15.2% of all households have incomes below $4,000.00 but 26.8% of the Mexican-Americans have income below $4,000.00.
And as the opinion below points out, I won't stop to read it in the footnote.
It’s the minorities who have the intense need for housing.
Indeed, the President’s Commission on Housing pointed out that the need for housing among minority was three times as intense.
Minorities of course form the great black of people who are the occupants of low-rent public housing and when people vote on these questions as the affidavits in the record make clear.
There is not much doubt on that what is on the agenda is the unwise poor -- the minorities whose housing is more notably inadequate than everyone else is.
There are two other consequences which I can't say are written into the statute and which I don’t make our case turn exclusively on but other point but I think there’re important consequences in deciding whether this is an invidious classification.
They go very closely together.
The great problem in housing and the great problems that result from it come from the difficulties that persons of low-income have in moving to communities where the better jobs are, where there is opportunity for self-help and advancement.
And I suppose there are two no better are examples anywhere in the country than San Mateo County as one goes down on the peninsula in California and San Jose down at the end of the bank.
And the problem is that there is no housing for people to move into those areas so that here there is an indirect restraint, I don’t liken it to Shapiro and Thompson.
There is an indirect restraint on freedom of movement to go and help themselves and there is also of course a resulting, built-in house preservation of the ghettos.
Because this kind of obstacle makes it difficult to build the necessary public housing units in counties like Sta. Clara and San Mateo and that too results in racial discrimination.
It seems to me as I say in deciding whether this is an invidious classification, a distinction against the persons of low-income who can't afford this housing that these consequences are properly taken into account.
But the heart of my case rests on the combination as I have said too many times, I'm afraid, of the built-in disadvantage not required on any other kind of interest of any other group.
The expressed classification of persons of low-income and the other absence of any neutral principle which California can be said to have followed in setting up the classes of those required to go to an automatic referendum.
Taking those together Mr. Chief Justice, we submit that there is a denial of the equal protection of the law.
Chief Justice Warren E. Burger: Let me ask you just one more question on this category of minorities or relating to your classification of the poor in purposes of this case.
Suppose a given county in California, a small county had a bond issue up for $20 or $30 million to construct high schools and it was subject to a referendum, which I gather many of them are, would there be an Equal Protection Clause or a discrimination factor involved because the principal beneficiaries, the students couldn’t vote and that’s a fund issue?
Mr. Archibald Cox: Well, I would -- because the students couldn’t vote.
Chief Justice Warren E. Burger: Students couldn’t vote, yes.
Mr. Archibald Cox: Well, I guess you took care of that --
Chief Justice Warren E. Burger: No, I'm talking about high schools now 14 to 18, I was deliberately putting it under the 18 group because lately we --
Mr. Archibald Cox: I think that the character of the bond issue provision is one which is a general one relating to all bond issues is one that cuts against one group today and another group tomorrow.
And therefore, one can say that this category was set up according to a uniform rule that doesn’t point the finger at any group in the community that says where we’re incurring long term debt, the kind of thing of course which in the history if the country frequently resulted in insolvency of cities and counties.
When we’re talking about long-term debt, we want to go more slowly.
So we will set up a separate governmental manner of dealing with that group provisions.
That doesn’t seem to me to involve any invidious classification.
You do have the question here whether two-thirds can be required.
The Supreme Court of California held that two-thirds could not constitutionally be required, of course we’re not.
I just recalling that for the Court’s benefit we’re not involved in that and I'm certainly not arguing the merits to that question.
Chief Justice Warren E. Burger: Thank you Mr. Cox.
Thank you Lasky.
The case is submitted.