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I concur with the recommendations of the committees and in view of their findings it is my intention to resubmit to the next session of the Utah Legislature a Fair Housing Bill for the State of Utah.
The passage of S. 3296 is strongly endorsed by my office. Passage of this meas. ure will aid the State Legislature in taking affirmative action in the field of Fair Housing.
The fear that surrounded the passage of FEP and Public Accommodation Laws has largely subsided with experience. I believe that the fear of passage of a Fair Housing Law would also quickly dissipate. Respectfully submitted.
CALVIN L. RAMPTON, Governor.
Re special report on rentals and housing of the Utah Executive Committee on
DEAR GOVERNOR RAMPTON: Pursuant to Executive Order of June 1, 1965, your Committee met on July 9, 1965, to receive its charge and to organize. Mr. Adam M. Duncan was chosen as Chairman, Mrs. L. V. Davis was chosen Vice-Chairwoman and Mrs. Pat Woodruff was chosen as Secretary. An Executive Committee consisting of Mr. Adam M. Duncan, Mr. Johnie M. Driver, Mr. Herschel J. Saperstein and Mrs. Pat Woodruff was also selected. Thereafter, Dr. J. D. Williams submitted a proposed organizational plan which was adopted. Mr. Herschel J. Saperstein was chosen as chairman of the subcommittee to consider real estate matters, and Mrs. Donald M. Burns, Mr. Johnie M. Driver, Mr. Robert Mukai and Dr. J. D. Williams were chosen as members of that committee.
The full committee has met on a number of occasions in 1965 and 1966. The real estate sub-committee has met both with the full committee and independently. The full committee has met with the real estate sub-committee of the Utah Advisory Committee to the United States Commission on Civil Rights. Joint public hearings were held with the Utah Advisory Committee to the U.S. Commission on Civil Rights on October 22, 1966, in Salt Lake City and Ogden. Testimony and other evidence has been submitted to and reviewed by the subcommittee and the full committee. The Committee proposes to continue further studies of other civil rights matters hereafter.
The full Committee has carefully reviewed the findings and recommendations set forth hereinunder. The members feel that the findings are equally applicable to members of other minority groups, but evidence adduced has been such that this report has been restricted to the experience and conditions of the Negro in Utah. The members felt it appropriate to indicate that the Committee has acted wholly without budget or professional assistance and that, accordingly, its findings lack the detailed documentation which would have been desirable. Notwithstanding this fact, the Committee believes that its findings and recommendations are firmly and fully substantiated by the evidence which it has received. The Committee feels that additional and more detailed studies of the specific matters related hereinafter would serve only to further substantiate and confirm its findings.
Your Commmittee has endeavored to approach and conduct its study in a positive, constructive and dispassionate manner, and without any precommitments of any kind. Evidence was received by the Committee (including matters concerning the problems of members of other minority groups in addition to the Negro), and such evidence would sustain more far-reaching recommendations than those stated herein. The committee members felt, however, that further investigation into these matters was required prior to their being satisfied that additional findings and recommendations should be made.
Your Committee gratefully acknowledges the assistance of the Office of the Attorney General and Mr. Phyl L. Poulsen.
Your Committee solicited, received and reviewed testimony and other evidence supporting the following findings of fact:
1. Utah's Negro citizens experience racial discrimination when seeking to rent, purchase or finance a home or apartment in neighborhoods of their choice, other than in areas where Negroes presently reside. When, as and if the Negro succeeds in overcoming these racial barriers, he is usually required to pay a higher down-payment or higher total cost than that required of a non-Negro for similar facilities.
2. Certain affiliated associations of real estate brokers dominate the business of sale and resale and, to a somewhat lesser degree, renting of residential housing in Utah. It is the official policy and position of these associations to make no attempt to eliminate racial discrimination. On the contrary, the official policy and position expressly instructs members to carry out any instructions from clients including placing statements on broker agreements that property not to be shown or sold to persons of a specified race or national origin. The official policy and position of these associations opposes any attempt by legislative enactment to eliminate racial discrimination.
3. By no means all of the persons who are members of the said dominant brokers associations share the official policy and position of the association on racial discrimination. Several of these members indicated that they personally wanted to eliminate such discriminatory practices, but feared economic reprisal, boycott and loss of business of the associations to which they, for business reasons, felt they must belong.
4. A substantial number of persons engaged in renting or owning multiple unit residences indicated to the Committee that they wanted to be able to rent to anyone without regard to race, color or national origin, but that they were not willing or able to do so because they feared economic reprisal, boycott. or loss of business, unless their competitors were required to adopt a similar non. discriminatory policy.
5. A number of persons engaged in residential financing favor elimination of racial discrimination, but such persons indicated that they fear economic reprisal, boycott and loss of business should they provide financing for a Negro in an area other than those wherein Negroes presently reside.
6. The (Federal) Civil Rights Act of 1964 and civil rights legislation enacted by the 1965 Utah Legislature have resulted in observable changes in conduct and improvement in opportunities for Utah's Negro in employment and public accommodations and Utah's non-Negro citizens have accepted well the spirit and intent of these legislative enactments.
7. Your Committee found a growing and articulate concern among persons of all backgrounds including persons engaged in real estate development, rentals, financing and brokerage, that the problems of racial discrimination be squarely faced and dealt with, soon, and at a local level.
8. In the absence of a uniform policy requiring equality of opportunity in housing, such as only legislation can effect, the prospects of improvement in eliminating racial discrimination in housing apepar unfavorable.
RECOMMENDATIONS Your Committee respectfully submits that the foregoing findings fully support the following recommendations :
Your Committee recommends that the Utah Legislature, at the earliest practi. cable date, receive and consider legislation, however dominated or implemented, which would, basically stated, (a) provide a legal basis permitting Utah's nonNegro citizens to rent and sell homes and provide financing to any persons, without regard to race, color or national origin and without fear of economic reprisal, boycott or loss of business, and (b) thereby enable Utah's Negro citizen to enjoy the fundamental human and civil right to rent or purchase a home of his choice, on terms and at a price comparable to other citizens.
Dated : April 1, 1966.
Lowell L. Bennion, Mrs. Harriet Brewster, Mrs. Donald M. Burns,
McRay Cloward, Mrs. L. V. Davis, Johnie M. Driver, Adam M.
Joint STATEMENT OF MILLS E. GODWIN, GOVERNOR OF VIRGINIA, AND ROBERT Y.
BUTTON, ATTORNEY GENERAL OF VIRGINIA, IN OPPOSITION TO S. 3296. As the Governor and the Attorney General of the Commonwealth of Virginia, we welcome the opportunity extended us by Senator Ervin, Chairman of the Senate Subcommittee on Constitutional Rights, to submit to the subcommittee
our joint statement in opposition to S. 3296, entitled the "Civil Rights Act of 1966." Since particular national interest has focused upon the provisions of Ttile IV of the proposed bill, to which circumstance our attention was drawn in Senator Ervin's communication, we have limited this statement to a consideration of that portion of the pending legislation; however, our emphasis upon the provisions of Title IV in no way diminishes our fundamental objection to enactment of S. 3296 in its entirety.
In essence, Title IV would prohibit discrimination in the sale or rental of any house or vacant land intended for housing anywhere in the United States. Allegedly aggrieved persons could bring punitive damage suits in Federal courts. In addition, the Attorney General of the United States would be authorized to bring civil suits to ensure compliance, or to intervene in private suits. With respect to the pervasive scope of the provisions under consideration, the Attorney General of the United States, testifying before Subcommittee No. 5 of the House Judiciary Committee, frankly stated that Title IV applies :
"to all housing and prohibits discrimination on account of race, color, religion or national origin by property owoners, tract developers, real estate brokers, lending institutions and all others engaged in the sale, rental or financing of housing." (Italics supplied).
During the course of his testimony on that occasion, the Attorney General of the United States advised the subcommittee that Title IV was primarily predicated upon the Commerce Clause and the Fourteenth Amendment of the United States Constitution and that he had no doubts concerning the constitutionality of the provision in question. We submit, however, that Title IV finds no constitutional warrant whatever in either the Commerce Clause or the Fourteenth Amendment and is constitutionally invalid because, in its direct operation and effect, it infringes traditional, private property rights secured to citizens of the United States by the Bill of Rights. We shall discuss these fundamental constitutional objections to Title IV of the proposed bill seriatim.
THE COMMERCE CLAUSE
The attempt by the Attorney General of the United States to find support for Title IV in the Commerce Clause is so manifestly attenuated as not to merit extended discussion. It is obvious to all that the impetus for Title IV of the proposed legislation is entirely social (i.e., racial) in character, and has nothing whatever to do with the national economy or commerce between the States. No demand for enactment of the challenged provision arises from economic interests, nor is there any imaginable—much lest demonstrable-effect upon interstate commerce which would justify passage of Title IV as a proper governmental regulation to redress adverse conditions affecting the flow of goods in such commerce.
Surely, if there is any subject at all which lies outside the scope of interstate commerce, it is real estate. We suggest that nothing can be more removed from interstate commerce than residential housing and vacant land. By what process of the legalistic legerdemain it can be suggested that real property and affixed structures—which are owned by private individuals for residential purposes and not employed in business come within any definition of "commerce” is impossible to grasp. Indeed, in 10 East 40th St., Co. v. Callus, 325 U.S. 578, 585, Mr. Justice Frankfurter clearly stated that the renting of "office space in a building exclusively set aside for an unrestricted variety of office work spontaneously satisfies the common understanding of what is local business." Moreover, in a variety of cases it has been held that "dwelling houses are not instrumentalities of commerce" and that "employees engaged in building or repairing dwelling houses” are not engaged in interstate commerce. Coomer v. Durham, 93 F. Supp. 526, 528; Morris v. Beaumont Mfg. Co., 84 F. Supp. 909; Oberdorfer v. Edmund J. Rappoli Co., 137 N.Y.S. (2d) 14; see also, Hutcheson : "The Constitutionality of the President's Order Barring Discrimination in Federally-Assisted Housing”, Open Occupancy v. Forced Housing Under the Fourteenth Amendment, pp. 100 et seq. (Avin's Edition 1963).
In light of the foregoing, it is clear that if residential housing and vacant land fall within the ambit of Congressional power to regulate interstate commerce, then the Commerce Clause effectively sweeps under the absolute control of Congress all aspects of our national life and individual existence and renders the remainder of our Constitution unnecessary and ineffectual.
THE FOURTEENTH AMENDMENT
Consideration of the second stated objection to the constitutionality of Title IV begins with the premise that provisions of the United States Constitution must be construed to effectuate the intent and purposes of the Framers and cannot be interpreted to confer upon Congress powers expressly excluded by those who composed and adopted the particular provision in question. In this connection, the Supreme Court of the United States has recently reaffirmed that its constitutional duty is to construe (not to rewrite or amend) the Constitution, that this duty requires the Court to read the Constitution to effectuate the intent and purposes of the li ramers and that consideration must be given to the history and circumstance indicating what the Fourteenth Amendment was in fact designed to achieve. See, Bellv. Maryland, 378 U.S. 226, 288–289. Similar obligations, of course, rest upon the Congress.
Recourse to the legislative history of the Fourteenth Amendment, and to the debates of the Thirty-Ninth Congress which framed and adopted that amendment, conclusively establishes that the Fourteenth Amendment was designed to uproot racially discriminatory State legislation which operated unequally upon different racial groups, to the end that a State law which affected one man would operate with like effect upon all. The purpose of the amendment was to eradicate those State statutes which prevented Negroes from purchasing or leasing real property, owning land, or even making contracts. Equally clear is it that the Framers expressly excluded from the scope of the amendment any impairment of the well recognized right of individual citizens to dispose of their real property to persons of their own choice and in such manner as they saw fit. Typical of the observations supportive of the latter conclusion is that of Representative John A. Bingham, characterized by Mr. Justice Black as the Father of the Fourteenth Amendment, who assured the house that was to real estate, everyone knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States.” See, Cong. Globe, 39th Cong., 1st Sess. 1089 (1867–6). A comprehensive discussion of the entire legislative history of the Fourteenth Amendment in this regard-entirely dispositive of the question contrary to the present position of the Attorney General of the United States will be found in an article entitled "The Fourteenth Amendment and Real Property Rights", authored by Messrs. Tansill, Arins, Crutchfield and Colegrove. contained in the symposium Open Occupancy , Forced Housing under the Fourteenth Amendment, p. 68 et seq. (Avins ed. 1963).
Moreover, individual acts by prirate persons formed no part whatever of the subject matter of the Fourteenth Amendment-only discriminatory State action fell within the ambit of its provisions. In Shelley v. Kraemer, 344 U.S. 1, the Supreme Court expressly pointed out that the Fourteenth Amendment erects no shield against merely private conduct, however discriminatory or wrongful. The ('ourt expressly stated that the principle has become firmly embedded in our constitutional law that the action inhibited by the Fourteenth Amendment is only such action as may fairly be said to be that of the States,
In United States v. Harris, 106 U.S. 629, the Court, quoting from United States v. Cruickshank, 92 U.S. 512. said :
“ “The fourteenth amendment prohibits a state from depriving any person of life, liberty or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a member of the society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guarantees, and no more. The power of the national gorcrnment is limited to this guaranty.'" (Italics supplied).
In the recent case of Peterson v. Greenville, 373 U.S. 244, 327–328, Mr. Justice Harlan commented upon the vitality and effect of the limited scope of the Fourteenth Amendment in a private property context and admonished:
“This limitation on the scope of the prohibitions of the Fourteenth Amendment serves several vital functions in our system. Underlying the cases involving an alleged denial of equal protection by ostensibly private action is a clash of competing constitutional claims of a high order : liberty and equality, Freedom of the individual to choose his associates or his neighbors, to use and dispose of his property as he sees fit, to be irrational, arbitrary, capricious, even unjust in his personal relations are things all entitled to a large measure of protection from governmental interference. This liberty would be overridden, in the name of equality, if the strictures of the Amendment were applied to governmental and private action without distinction. Also inherent in the concept of state action are values of federalism, a recognition that there are areas of private rights upon which federal power should not lay a heavy hand and which should properly be left to the more precise instruments of local authority. (Italics supplied).
Clearly, the Supreme Court of the United States has consistently proclaimed and preserved the fundamental, long recognized principle that the Fourteenth Amendment does not reach private conduct, however arbitrary, unlightened, capricious or prejudiced that conduct may be. As the powers conferred upon Congress by Section 5 of the Fourteenth Amendment are limited to enforcing the provisions of that Amendment, it follows that Congress is not constitutionally empowered to regulate purely private relationships or to add to the legal rights of one citizen by diminishing the constitutional rights of another.
PRIVATE PROPERTY RIGHTS AND FREEDOM OF CHOICE
We would have thought that if anything in this country is incontestably settled-both by judicial decision and by the common consent and understanding of our citizens-it is the principle of the absolute right of every man, acting as an individual, to deal with or refuse to deal with any person or class of persons in the sale of his private residence, entirely as he sees fit, whatever his motive and without being held in any way accountable at law. Nothing in our Constitution gives to one citizen the right to acquire property from another who does not wish to sell it to him, even if the refusal to sell is based upon race, religion or any other circumstance.
A foundation case supportive of this view is Great Atlantic and Pacific Co. v. Cream of Wheat ('0., 227 Fed. 46. 48–49, in which the United States Court of Appeals for the Second Circuit proclaimed:
"We had supposed that it was elementary law that a trader could buy fren whom he pleased and sell to whom he pleased, and that his selection of seller and buyer was wholly his own concern. It is a part of a man's civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice, or malice.
"We have not yet reached the stage where the selection of a trader's customers is made for him by the government." (Italics supplied).
See also, Federal Trade Commission v. Raymond Brothers-Clark Coonpany, 263 U.S. 565; House of Materials, Inc. v. Simplicity Pattern Co., 298 F. (241) 867; McElhenney Co. v. Western Auto Supply Co., 269 F. (20) 332; Times-Picayune Publishing Co. v. United States, 345 U.S. 594; United States v. Colgate Co., 250 U.S. 300.
The blended principles of individual liberty, freedom of choice, freedom of association, and right of private property enunciated in the above-cited decisions are not ancient history in our land, nor are the various judicial expressions of these principles relics of some lost civilization. Indeed, in his concurring opinion in the recent case of Lombard v. Louisiana, 373 U.S. 267, 313, Mr. Justice Douglas pointed out that:
“the Bill of Rights * * * casts its weight on the side of the privacy of homes. The Third Amendment with its ban on the quartering of soldiers in private homes, radiates that philosophy. The Fourth Amendment, while concerned with official invasions of privacy through searches and seizures, is eloquent testimony of the sanctity of private premises. For even when the police enter private precincts they must, with rare exceptions, come armed with a warrant issued by a magistrate. A private person has no standing to obtain even limited access, The principle that a man's home is his castle is basic to our system of jurisprudence." (Italics supplied). And in the even more recent case of Bell v. Maryland, 378 U.S. 226, 313, Mr. Justice Goldberg emphasized these principles in a private property context in the following language:
"Indeed, the constitutional protection extended to privacy and private association assures against the imposition of social equality. As noted before the Congress that enacted the Fourteenth Amendment was particularly conscious that the 'civil rights of man should be distinguished from his 'social' rights.