Reitman v. Mulkey

LOCATION: Hayden Residence

DECIDED BY: Warren Court (1965-1967)

CITATION: 387 US 369 (1967)
ARGUED: Mar 20, 1967 / Mar 21, 1967
DECIDED: May 29, 1967

Facts of the case


Media for Reitman v. Mulkey

Audio Transcription for Oral Argument - March 20, 1967 in Reitman v. Mulkey

Audio Transcription for Oral Argument - March 21, 1967 in Reitman v. Mulkey

Earl Warren:

-- et al, petitioners versus Lincoln W. Mulkey et al.

Mr Wirin.

A. L. Wirin:

Chief Justice, may it please Your Honors.

I address myself first to answer an inquiry put to Mr. Pruitt by the Chief Justice and by Justice Fortas as to whether or not the provision which we are challenging that we challenged below, Section 26 of the California Constitution, includes or encompasses persons who determine to discriminate in the sale or rental of housing because of race based upon agreement with others, particularly agreements in the nature of restrictive covenants.

My answer to the question of Your Honors is different from that given to you by Mr. Pruitt.

The text of Section 26 appears as an appendix to the brief for the petitioners as do the valid arguments which were submitted to the voters in California.

The first sheet or page in the appendix, right after the blue sheet from the brief for the petitioners contains the text of Section 26.

Your Honors will find that the brief for the petitioners and the brief for respondents may carry the similar colors but they're quite different in thrust and in import so far as the arguments presented are concerned.

This is called brief for petitioners and it has an appendix following a little blue sheet and the critical or significant provisions of this -- of this entire section is in the first paragraph and I merely refer to the last sentence in the first paragraph and to the phrase, “In his absolute discretion.”

And it seems to me that a reading of that phrase stated as broadly as I think the English language permits in his absolute discretion, would certainly include an individual who in his own absolute discretion undertakes voluntarily to arrive in the -- to arrive an agreement with others.

All of whom voluntarily agree to discriminate in housing because of race and thus the restrictive covenant.

So, it seems to me that a reading of a provision on its face, moreover Your Honors, we challenged below and the court below was of the view that Section 26 is unconstitutional on its face.

Therefore, it seems to me what the provision says on its face is -- it is the first consideration.

Additionally Your Honors, this section, Section 26 in the fourth paragraph which is the last paragraph on the same sheet, undertakes with precision to carve out certain exemptions.

These exemptions are with respect to the obtaining of property by eminent domain and with respect to accommodations for transients.

So, when the writers of this provision intended to make exemptions, they were able to and succeeded in setting forth those exemptions with precision, no exemption so far as the unlimited, unrestrained, uncontrolled by the courts, authority of the individual to exercise his absolute discretion no matter the circumstances or the considerations which entered into his -- his own discretion.

No such limitation appears on the face of the -- of the section.

Moreover Your Honors, I've stated Your Honors that the valid arguments are contained in this -- in this appendix.

Your Honors will find nothing in the valid -- valid arguments which suggest any such exemption for persons who determine to discriminate in their absolute discretion based upon such agreements.

And finally as to this narrow point, narrow or broad, in addition to the formal arguments which were submitted to the voters on -- to the voters, valid arguments and distributed by the Secretary of State which are attached as part of the appendix to the brief for the petitioners.

There is an extended brief by one of amici, namely the United Auto Workers Union and I -- I state simply quickly for Your Honors' guidance, if it is, that attached as appendices to that brief, it is the gray brief, motion for -- by the United Auto Workers.

There are arguments made to the voters perhaps informally, but nonetheless circulated by the California Real Estate Association and its subordinate organizations, distributed and circulated by that organization to the voters stating the purpose and the meaning of Section 26.

And nowhere in any of the arguments presented to the voters, even informally is there any suggestion that the limitation suggested by Mr. Pruitt maybe -- maybe read into this section.

Potter Stewart:

Mr. Wirin?

A. L. Wirin:

Yes sir.

Potter Stewart:

Under California law, who prepares these valid arguments?

A. L. Wirin:

They're prepared by persons who are prominent on each -- on each side of the controversy.

The decision as to who's prominent is made by the Secretary of State.

Potter Stewart:

The Secretary of State designates the --

A. L. Wirin: