suits in regard to jury discrimination, the third title deals with nondiscrimination in public education and other public facilities, the fourth title deals with discrimination in housing and the fifth title would create criminal offenses for interfering with voting, enrolling in public schools, selling and purchasing of housing, jury service and rights of public accommodation as set forth therein. When we consider the proposed Act with reference to the selection of jurors we find that actually the net result of Title I is to take away from the States the right to administer their own jury system and turn it over to the Federal Government and especially the Department of Justice of the Federal Government. An elaborate system is set up for the selection of jurors in the Federal Courts and then under Title II the Attorney General of the United States is permitted to use injunctions against the States if he thinks that the jury is not being selected to suit his taste, and, in fact, under Section 203 of Title II, the Attorney General of the United States, through the intervention of the Federal Courts, may impose upon the States any standards or criteria he chooses in the selection of juries in State Courts and may require the States to keep an elaborate system of records which are in accordance with Federal requirements. Under Title V by the use of general and dragnet terms any person who injures, intimidates, or interferes with any jury service is subject to a fine of $1,000 or imprisonment of not more than one year, or both; and if bodily injury results, then the fine shall be $10,000 or imprisonment for not more than ten years, or both; and in case of death there shall be life imprisonment. Title V is literally filled with all sorts of broad, general, dragnet terms which could result in the conviction of innocent people no matter how well they acted in good faith. So far as the State of North Carolina is concerned it is suggested that the Supreme Court has handled problems of alleged jury discrimination in a fair manner. As to the disposition of such cases by the Supreme Court of North Carolina, see the following cases: State v. Lowry and Mallory, 263 N.C. 536; State v. Innman, 260 N.C. 311; State v. Perry, 248 N.C. 334; State v. Speller, 230 N.C. 345. We could cite many other cases but it is sufficient to say that within the last several years the Supreme Court of the United States has reversed the Supreme Court of North Carolina on the question of jury discrimination in only one case. Under the North Carolina statute the names of persons eligible for jury service can be taken from tax records, city directories, or, in fact, any other records or documents that are adaptable for such purpose. As to Title III, there is absolutely no need for this enactment inasmuch as all of these subjects have been covered by the Congress in the Civil Rights Act of 1964, and are also covered by the early Civil Rights Acts which were enacted by the Congress shortly after the close of the Civil War and during the so-called "Reconstruction Period." We come now to Title IV, which assumes to grant special privileges to a certain organized minority group. In order to please this group all human rights which relate to property are destroyed. No man who owns property may select his own purchaser, and the scope of the Act brings within its terms all buildings and structures, whether in existence or under construction, and it even brings within its scope vacant land which can be used for construction purposes. No greater force for the abolition of all rights in property can be created or imagined. There could only be one further step which possibly the Congress might consider, and that is to allow a member of this minority group to pick out a house or building that he wants and then compel the owner to sell to him at a price fixed by a member of the minority group. When this is done the whole process will have come full circle and reach the limits of its logic. All disobedience to these Federal mandates are punishable by criminal contempt and also by fine and imprisonment upon conviction in a criminal case. What the members of this minority group and their white supporters do not realize is that all of these proposals are like a two-edged sword. This present minority group and its organizations are now in power but there is no reason to believe that they will forever continue in power, and when another group whose concepts are adverse to this present minority group shall have attained power, then all of these things will be turned against the present beneficiaries. As Attorney General of North Carolina it is my opinion that there is no necessity at all for this proposed Act. Hon. SAM J. ERVIN, Jr., STATE OF OREGON, DEPARTMENT OF JUSTICE, Salem, June 23, 1966. Chairman of the Subcommittee on Constitutional Rights, Committee on the Judiciary, Senate Office Building, Washington, D.C. DEAR SENATOR ERVIN: In response to your letter of May 6, 1966, directed to Governor Hatfield of Oregon, inviting my comments as to policy and constitutionality of Title IV of the proposed Civil Rights Act of 1966, I have several observations to make. As you know, Oregon already has a law forbidding discrimination in the sale, renting or leasing of real property by persons engaged in the business of selling, renting or leasing of any real property. In practice the application of this law is much broader than would appear at first glance. Persons engaged in the business of selling, leasing or renting real property are defined in a way to include almost every person who sells, leases or rents his own real property or that of another for profit. An example of the broad application of the Oregon statute is seen from its application to the owner of a private residence in a college town renting rooms to students; to a mortgage lending company who on occasion sells property as an incident to the operation of his mortgage business; to a building contractor who erects model houses and builds others to specification of the purchaser; and to an individual who buys a lot, erects a house thereon, residing therein before it is completed and selling it before buying another and repeating the process, etc. Oregon Fair Housing statute does not cover real property transaction in which neither the owner nor his agent handling the transaction is engaged in the business of selling, leasing or renting real property. This law has existed substantially in the same form since 1959 without any significant demand for a change in its coverage. The reason for this, I understand, lies in the fact that as now written the law applies to more than 98 percent of all real property transactions within the state, and the less than 2 percent transactions which are not covered do not involve sellers or agents with an inclination or interest to be served by discriminating on the basis of race, color, religion or national origin. By and large the transactions exempted involve a seller who will not be residing in the area or neighborhood after the sale of his home. Moreover, Oregon is one of the few places in which polarization of ethnic and religious feelings do not exist to any substantial degree as compared with the rest of the nation. Therefore, there is less inclination on the part of the individual to discriminate against others because of race, religion, color or national origin in the sale of a house. But persons engaged in the business of selling, leasing and renting real property sometimes feel they have a commercial interest to protect by maintaining the neighborhoods as they are or by conforming to what they believe to be the expectation of residents in a neighborhood. During the time the law was being debated in the Oregon legislature and after its passage, I am informed, that some persons in the real estate industry expressed the view that the law was discriminatory against real estate brokers, salesmen and property developers. It was felt that the individual desired the real estate broker to discriminate as to race, religion, color or national origin when he listed his home for sale. It was argued that the individual would sell his home directly to avoid the restriction of the law and this would ultimately affect the business of the brokers. The brokers argued that the law should be extended to the private individual who sold his own home, and I understand such a proposal was made to the legislature by a representative of the real estate industry. It would appear that the proposed Civil Rights Act of 1966 would accomplish the objective in Oregon sought by some of the real estate brokers. Other than that I do not think the impact of Title IV of the proposed Civil Rights Act of 1966 would be very great in Oregon. So far as the constitutionality of Title IV of the proposed Civil Rights Act of 1966 is concerned, I believe the United States Supreme Court, as presently constituted, will accept the position urged by Attorney General Katzenbach when he appeared for your subcommittee on June 6, 1966. I think the court will rule that Title IV is sustainable both under the Commerce Clause and the Fourteenth Amendment to the United States Constitution. The court will probably follow the cases cited by the Attorney General in his testimony before your subcommitee. Since your committee already has those cases I shall not cite them in this letter. DEAR SENATOR ERVIN: This will acknowledge receipt of your letter of May 6, 1966, addressed to Honorable John H. Chafee, Governor of the State of Rhode Island, which said letter refers to the proposed civil rights act now pending in the Congress of the United States. I have studied the contents of the proposed bill with interest, and I am happy to state that I am completely in accord with the policy thereof. It is a matter of record that on several occasions in the past few years I have publicly expressed myself as opposing any legislation, regulation, practice or custom under which any person is denied any of his rights because of his race, color, creed, country of national origin or economic status. Consistent with that position, I am very definitely in accord with the policy which is the obvious basis of the legislation in question. With reference to the specific matter of Title 4 of the proposed act, we in Rhode Island take pride in the fact that we adopted so-called "Fair Housing" legislation last year. Fortunately, the matter of discrimination in housing has never been a serious problem in this state, but notwithstanding that, our legislature, in its wisdom, enacted "Fair Housing" legislation in order to assure that there would be no discrimination against so-called minority groups in the state in connection with housing. To date, no one has made any move to my knowledge to test the constitutionality of the act of our legislature. With reference to the constitutionality of the federal act, it is my considered judgment that in view of the various opinions of the United States Supreme Court in the general field of civil rights in recent years the probability is that the provisions of Title 4 of the federal act will be held constitutional. Trusting that the above may be of assistance, and with kindest personal regards, I remain Sincerely, J. JOSEPH NUGENT, Attorney General. By FRANCIS J. FAZZANO, STATE OF UTAH, OFFICE OF THE ATTORNEY GENERAL, Salt Lake City, June 17, 1966. Hon. SAM J. ERVIN, Jr., Chairman, Committee on the Judiciary, DEAR SENATOR ERVIN: This is in response to your letter of May 6, 1966, wherein you requested that this office examine Senate Bill No. 3296 and present our views on the constitutionality of its provisions. Title I of S. 3296, dealing with the selection of juries in United States district courts and the District of Columbia Court of General Sessions, as well as the Juvenile Court of the District of Columbia, would appear to raise no constitutional objections and be well within the scope of congressional power. Title II of S. 3296, prohibiting discrimination on the basis of race, color, religion, sex, national origin, or economic status among persons otherwise qualified to serve on grand and petit juries of any state court, would also appear to be well within the constitutional powers of Congress. The United States Supreme Court has indicated in several opinions that the arbitrary exclusion of persons on the basis of the above classifications from juries could result in a denial of due process of law. Since the formation of a jury and the exercise of juror functions is definitely state action, this office can see no constitutional impediment to the provisions of title II of S. 3296. Title III of S. 3296, prohibiting non-discrimination in public education facilities and other public facilities and allowing the Attorney General to seek injunctions against such discrimination, would appear to be clearly constitutional, in view of the recent decision of the United States Supreme Court upholding the public accommodation provisions of the Federal Civil Rights Act of 1964. Title IV of the act raises the most serious constitutional question. The policy of Title IV as set forth in the bill is to prevent discrimination on account of race, color, religion, or national origin in the purchase, rental, leasing, financing, use and occupancy of housing throughout the nation. It would appear that the bill goes beyond what the Supreme Court indicated was permissible under the 14th Amendment to the Constitution of the United States at the time the original civil rights cases were decided in 1883. Civil Rights Cases 109 U.S. 3 (1883). However, it would appear that the United States Supreme Court has recently departed from the strict position of the civil rights cases, and it may well be that the court could easily overrule those cases and sustain the legislation proposed in Title IV of S. 3296 to the extent that it attempts to prevent discrimination in the sale, rental or leasing of private housing. The prevention of discrimination in the field of financing of housing would appear to be legitimate without the overruling of the civil rights cases, since the authorization of the financing activity by the state in licensing or regulating the activity is probably sufficient state action to justify congressional activity to insure that there is no discrimination. However, the private housing and sale provisions would not appear to be within the clear ambit of recent decisions of the United States Supreme Court, although the legislation is certainly in harmony with the privity and spirit of many of the recent cases. Apart from the straight legalistic question, this office has little doubt that if S. 3296 were passed on by the United States Supreme Court, it would be upheld as constitutional in all its parts. If further assistance or guidance is desired or required, please do not hesitate to so inform this office. Very truly yours, PHIL L. HANSEN, Re Civil Rights Act of 1966 (S. 3296). THE STATE OF WASHINGTON, Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Senate Office Building, Washington, D.C. DEAR SENATOR ERVIN: In response to your request I am commenting on the policy and constitutionality of the provisions of S. 3296, the Administration's proposed Civil Rights Act of 1966. Title I deals with the manner of selection of jurors for federal courts, something which I am content to see Congress work out in its own way. The requirement in section 1864 (b) that local officials make voter registration lists available for copying by the federal jury commission ought to cause no trouble in Washington. Our registration records are already used for the preparation of state jury lists. RCW 2.36.060. Title II deals with discrimination in the selection of jurors in state courts. but I expect that this title would seldom be used in Washington. I know of no problem of discrimination in the selection of jurors in this state. I leave it to the judgment of Congress whether conditions in other states warrant enactment of this title. The remedies provided in Title III would be cumulative to remedies already provided by the state of Washington for the same wrongs. Intentional discrimination in schools or other publicly operated facilities is rare in Washington, and our public officials are vigilant to prevent it. Again, I leave it to the judgment of Congress whether conditions elsewhere make enactment of this title necessary. Title IV presents more difficulty. It is the responsibility of those of us who govern in this time of readjustment of the relationship between minority and Caucasian citizens throughout our land to do what we can to direct the course of social change toward a sound and just accommodation. Our Negro and other minority citizens are no longer willing to voluntarily endure the restraints with which they have lived in the past. We cannot deny their demands to participate in the American way of life without denying the very principles on which the American way of life is based. We have no responsible alternative but to hasten the day when we have equal housing opportunity. It will not do for persons in public office to stand aloof and let the minority population and the organized real estate industry war privately. We must make sure that the duration of the war is short, its expense is manageable, and its outcome is just and enduring. Legislation to speed open housing is necessary. Because I firmly believe in the rule that the government closest to the people is best, my preference would be to ask Congress to forbear entering this field, in order to permit the states to solve the problem. But I cannot in good conscience ask this when my own state, which is progressive in many ways, is doing next to nothing about housing opportunities for minorities. Washington enacted an open-housing law for publicly assisted housing in 1957. It was declared unconstitutional by our state supreme court in 1961. O'Meara v. Washington State Board Against Discrimination, 58 Wn. 2d 793, 365 P. 2d 1 (1961). In 1964, Seattle and Tacoma, two of Washington's largest cities, enacted open housing ordinances. The ordinances were defeated in referendums by 2 to 1 and 3 to 1 vote ratios, respectively. Open housing legislation failed to pass in the 1963 and 1965 legislative sessions. Some concerned state and local officials and some private groups and individuals have continued to attempt to improve housing opportunities for minorities in informal ways, but the total impact of these efforts is small. The state of Washington is not solving the problem to which Title IV of the bill is directed. Title IV appears to be drafted with appropriate deference to our federal system. No federal bureaucracy is created; local affairs will not be administered from Washington. In essence, the act simply creates a new cause of action, which may be asserted in local state or federal courts. State action to combat housing discrimination would not be hampered in any way by enactment of this bill. State control of local affairs will be affected only if it is the state's policy to permit the continuation of private housing discrimination through a course of official inaction. Such a "state's right" ought to stand low in the rank of values to be preserved when judgments are made on the proper balance between the state and federal governments. No state has a right to insist that its citizens who are discriminated against because of race shall be without a remedy. Any state which takes this position convicts itself of denying its minority citizens the equal protection of their state government. No state can claim that its legitimate interests will be interferred with by enactment of Title IV of S. 3296. There remains only the question of the power of the United States to enact Title IV. Title IV was undoubtedly drafted in response to the holding of a majority of the United States Supreme Court justices in United States v. Guest,— U.S. (March 28, 1966) that section 5 of the Fourteenth Amendment gives Congress a grant of legislative power to fashion remedies to achieve civil and political equality for all citizens, protecting them from private conduct as well as state action. See the concurring opinions of Justices Clark, Black and Fortas, and Justice Brennan, Chief Justice Warren and Justice Douglas. I am not alarmed by this development. Federal legislation on civil rights is no more likely to interfere with legitimate state functions than state civil rights legislation is likely to interfere with legitimate federal functions, such as the regulation of interstate commerce (see Colorado Anti-Discrimination Comm. v. Continental Air Lines, 372 U.S. 714 (1963)). This is because under the United States constitution, the state and federal governments are bound to the same standard; they must each work for the realization of civil and political equality for all citizens. With good sense and good will, the federal government and the states need not stumble over one another in their common task. The remedies provided in Title V would be cumulative, for the most part, to remedies already provided by the state of Washington. I have no objection to enactment of this section. S. 3296 is sound in policy and constitutional in form. I urge its enactment. Very truly yours, JOHN J. O'CONNELL, Attorney General. |