James v. Valtierra, 402 U.S. 137 (1971)

402 U.S.
137
91 S.Ct. 1331
28 L.Ed.2d 678
Ronald JAMES et al., Appellants,

v.
Anita VALTIERRA et al., Appellees. Virginia C. SHAFFER,
Appellant, v. Anita VALTIERRA et al., Appellees.
Nos. 154, 226.
Argued March 3 and 4, 1971.
Decided April 26, 1971.
Donald C. Atkinson, San Mateo, Cal., for Ronald James and others.
Moses Lasky, San Francisco, Cal., for Virginia C. Shaffer.
Archibald Cox, Washington, D.C., for appellees.
Mr. Justice BLACK delivered the opinion of the Court.
These cases raise but a single issue. It grows out of the United States Housing
Act of 1937, 50 Stat. 888, as amended, 42 U.S.C. 1401 et seq., which
established a federal housing agency authorized to make loans and grants to
state agencies for slum clearance and lowrent housing projects. In response, the
California Legislature created in each county and city a public housing
authority to take advantage of the financing made available by the federal
Housing Act. See Cal. Health & Safety Code 34240. At the time the federal
legislation was passed the California Constitution had for many years reserved
to the State's people the power to initiate legislation and to reject or approve by
referendum any Act passed by the state legislature. Cal.Const., Art. IV, 1.
The same section reserved to the electors of counties and cities the power of
initiative and referendum over acts of local government bodies. In 1950,
however, the State Supreme Court held that local authorities' decisions on
seeking federal aid for public housing projects were 'executive' and
'administrative,' not 'legislative,' and therefore the state constitution's
referendum provisions did not apply to these actions.1 Within six months of that
decision the California voters adopted Article XXXIV of the state constitution
to bring public housing decisions under the State's referendum policy. The
Article provided that no low-rent housing project should be developed,
constructed, or acquired in any manner by a state public body until the project
was approved by a majority of those voting at a community election.2
2
The present suits were brought by citizens of San Jose, California, and San
Mateo County, localities where housing authorities could not apply for federal
funds because low-cost housing proposals had been defeated in referendums.
The plaintiffs, who are eligible for low-cost public housing, sought a
declaration that Article XXXIV was unconstitutional because its referendum
requirement violated: (1) the Supremacy Clause of the United States
Constitution; (2) the Privileges and Immunities Clause; and (3) the Equal
Protection Clause. A three-judge court held that Article XXXIV denied the
plaintiffs equal protection of the laws and it enjoined its enforcement. 313
F.Supp. 1 (ND Cal. 1970). Two appeals were taken from the judgment, one by
the San Jose City Council, and the other by a single member of the council. We
noted probable jurisdiction of both appeals. 398 U.S. 949, 90 S.Ct. 1873, 26
L.Ed.2d 288 (1970); 399 U.S. 925, 90 S.Ct. 2247, 26 L.Ed.2d 790 (1970). For
the reasons that follow, we reverse.
The three-judge court found the Supremacy Clause argument unpersuasive, and
we agree. By the Housing Act of 1937 the Federal Government has offered aid
to state and local governments for the creation of low-rent public housing.
However, the federal legislation does not purport to require that local
governments accept this or to outlaw local referendums on whether the aid
should be accepted. We also find the privileges and immunities argument
without merit.
While the District Court cited several cases of this Court, its chief reliance
plainly rested on Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d
616 (1969). The first paragraph in the District Court's decision stated simply:
'We hold Article XXXIV to be unconstitutional. See Hunter v. Erickson * * *.'
The court below erred in relying on Hunter to invalidate Article XXXIV.
Unlike the case before us, Hunter rested on the conclusion that Akron's
referendum law denied equal protection by placing 'special burdens on racial
minorities within the governmental process.' Id., at 391, 89 S.Ct., at 560. In
Hunter the citizens of Akron had amended the city charter to require that any
ordinance regulating real estate on the basis of race, color, religion, or national
origin could not take effect without approval by a majority of those voting in a
city election. The Court held that the amendment created a classification based
upon race because it required that laws dealing with racial housing matters
could take effect only if they survived a mandatory referendum while other
housing ordinances took effect without any such special election. The opinion
noted:
5
'Because the core of the Fourteenth Amendment is the prevention of

meaningful and unjustified official distinctions based on race, (citing a group of
racial discrimination cases) racial classifications are 'constitutionally suspect' *
* * and subject to the 'most rigid scrutiny.' * * * They 'bear a far heavier burden
of justification' than other classifications.' Id., at 391392, 89 S.Ct., at 561.
The Court concluded that Akron had advanced no sufficient reasons to justify
this racial classification and hence that it was unconstitutional under the
Fourteenth Amendment.
Unlike the Akron referendum provision, it cannot be said that California's

Article XXXIV rests on 'distinctions based on race.' Id., at 391, 89 S.Ct., at 561.
The Article requires referendum approval for any low-rent public housing
project, not only for projects which will be occupied by a racial minority. And
the record here would not support any claim that a law seemingly neutral on its
face is in fact aimed at a racial minority. Cf. Gomillion v. Lightfoot, 364 U.S.
339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The present case could be affirmed
only by extending Hunter, and this we decline to do.
California's entire history demonstrates the repeated use of referendums to give

citizens a voice on questions of public policy. A referendum provision was
included in the first state constitution, Cal.Const. of 1849, Art. VIII, and
referendums have been a commonplace occurrence in the State's active political
life.3 Provisions for referendums demonstrate devotion to democracy, not to
bias, discrimination, or prejudice. Nonetheless, appellees contend that Article
XXXIV denies them equal protection because it demands a mandatory
referendum while many other referendums only take place upon citizen
initiative. They suggest that the mandatory nature of the Article XXXIV
referendum constitutes unconstitutional discrimination because it hampers
persons desiring public housing from achieving their objective when no such
roadblock faces other groups seeking to influence other public decisions to their
advantage. But of course a lawmaking procedure that 'disadvantages' a
particular group does not always deny equal protection. Under any such
holding, presumably a State would not be able to require referendums on any
subject unless referendums were required on all, because they would always
disadvantage some group. And this Court would be required to analyze
governmental structures to determine whether a gubernatorial veto provision or
a filibuster rule is likely to 'disadvantage' any of the diverse and shifting groups
that make up the American people.
Furthermore, an examination of California law reveals that persons advocating

low-income housing have not been singled out for mandatory referendums
while no other group must face that obstacle. Mandatory referendums are
required for approval of state constitutional amendments, for the issuance of
general obligation long-term bonds by local governments, and for certain
municipal territorial annexations. See Cal.Const., Art. XVIII; Art. XIII, 40;
Art. XI, 2(b). California statute books contain much legislation first enacted
by voter initiative, and no such law can be repealed or amended except by
referendum. Cal.Const., Art. IV, 24(c). Some California cities have wisely
provided that their public parks may not be alienated without mandatory
referendums, see, e.g., San Jose Charter 1700.
10
The people of California have also decided by their own vote to require
referendum approval of low-rent public housing projects. This procedure
ensures that all the people of a community will have a voice in a decision which
may lead to large expenditures of local governmental funds for increased public
services and to lower tax revenues.4 It gives them a voice in decisions that will
affect the future development of their own community. This procedure for
democratic decisionmaking does not violate the constitutional command that no
State shall deny to any person 'the equal protection of the laws.'
11
The judgment of the three-judge court is reversed and the cases are remanded
for dismissal of the complaint.
12
Reversed and remanded.
13
Mr. Justice DOUGLAS took no part in the consideration or decision of these

cases.
14
Mr. Justice MARSHALL, whom Mr. Justice BRENNAN and Mr. Justice
BLACKMUN join, dissenting.
15
By its very terms, the mandatory prior referendum provision of Art. XXXIV
applies solely to
16
'any development composed of urban or rural dwellings, apartments or other

living accommodations for persons of low income, financed in whole or in part
by the Federal Government or a state public body or to which the Federal
Government or a state public body extends assistance by supplying all or part of
the labor, by guaranteeing the payment of liens, or otherwise.'
Persons of low income are defined as

17
'persons or families who lack the amount of income which is necessary * * * to

enable them, without financial assistance, to live in decent, safe and sanitary
dwellings, without overcrowding.'
18
The article explicitly singles out low-income persons to bear its burden.
Publicly assisted housing developments designed to accommodate the aged,
veterans, state employees, persons of moderate income, or any class of citizens
other than the poor, need not be approved by prior referenda.*
19
In my view, Art. XXXIV on its face constitutes invidious discrimination which

the Equal Protection Clause of the Fourteenth Amendment plainly prohibits.
'The States, of course, are prohibited by the Equal Protection Clause from
discriminating between 'rich' and 'poor' as such in the formulation and
application of their laws.' Douglas v. California, 372 U.S. 353, 361, 83 S.Ct.
814, 818, 9 L.Ed.2d 811 (1963) (Harlan, J., dissenting). Article XXXIV is
neither 'a law of general applicability that may affect the poor more harshly
than it does the rich,' ibid., nor an 'effort to redress economic imbalances,' ibid.
It is rather an explicit classification on the basis of povertya suspect
classification which demands exacting judicial scrutiny, see McDonald v.
Board of Election Commissioners, 394 U.S. 802, 807, 89 S.Ct. 1404, 1407, 22
L.Ed.2d 739 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 86
S.Ct. 1079, 16 L.Ed.2d 169 (1966); Douglas v. California, supra.
20
The Court, however, chooses to subject the article to no scrutiny whatsoever

and treats the provision as if it contained a totally benign, technical economic
classification. Both the appellees and the Solicitor General of the United States
as amicus curiae have strenuously argued, and the court below found, that Art.
XXXIV, by imposing a substantial burden solely on the poor, violates the
Fourteenth Amendment. Yet after observing that the article does not
discriminate on the basis of race, the Court's only response to the real question
in these cases is the unresponsive assertion that 'referendums demonstrate
devotion to democracy, not to bias, discrimination, or prejudice.' It is far too
late in the day to contend that the Fourteenth Amendment prohibits only racial
discrimination; and to me, singling out the poor to bear a burden not placed on
any other class of citizens tramples the values that the Fourteenth Amendment
was designed to protect.
21
I respectfully dissent.
Housing Authority for City of Eureka v. Superior Court, 35 Cal.2d 550, 557
558, 219 P.2d 457, 460461 (1950).
'Section 1. No low rent housing project shall hereafter be developed,

constructed, or acquired in any manner by any state public body until, a
majority of the qualified electors of the city, town or county, as the case may
be, in which it is proposed to develop, construct, or acquire the same, voting
upon such issue, approve such project by voting in favor thereof at an election
to be held for that purpose, or at any general or special election.
'For the purposes of this article the term 'low rent housing project' shall mean
any development composed of urban or rural dwellings, apartments or other
living accommodations for persons of low income, financed in whole or in part
by the Federal Government or a state public body or to which the Federal
Government or a state public body extends assistance by supplying all or part of
the labor, by guaranteeing the payment of liens, or otherwise. * * *
'For the purposes of this article only 'persons of low income' shall mean persons
or families who lack the amount of income which is necessary (as determined
by the state public body developing, constructing, or acquiring the housing
project) to enable them, without financial assistance, to live in decent, safe and
sanitary dwellings, without overcrowding.'
See, e.g., W. Crouch, The Initiative and Referendum in California (1950).
Public low-rent housing projects are financed through bonds issued by the local
housing authority. To be sure, the Federal Government contracts to make
contributions sufficient to cover interest and principal, but the local government
body must agree to provide all municipal services for the units and to waive all
taxes on the property. The local services to be provided include schools, police,
and fire protection, sewers, streets, drains, and lighting. Some of the cost is
defrayed by the local governing body's receipt of 10% of the housing project
rentals, but of course the rentals are set artificially low. Both appellants and
appellees agree that the building of federally financed low-cost housing entails
costs to the local community. Appellant Shaffer's Brief 3435. Appellees'
Brief 47. See also 42 U.S.C. 14011430.
California law authorizes the formation of Renewal Area Agencies whose

purposes include the construction of 'low-income, middle-income and normalmarket housing,' Cal. Health & Safety Code 33701 et seq. Only low-income
housing programs are subject to the mandatory referendum provision of Art.
XXXIV even though all of the agencies' programs may receive substantial
governmental assistance.

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402 U.S.

Ronald JAMES et al., Appellants,

'Because the core of the Fourteenth Amendment is the prevention of

Unlike the Akron referendum provision, it cannot be said that California's

California's entire history demonstrates the repeated use of referendums to give

Furthermore, an examination of California law reveals that persons advocating

Reversed and remanded.

Mr. Justice DOUGLAS took no part in the consideration or decision of these

'any development composed of urban or rural dwellings, apartments or other

Persons of low income are defined as

'persons or families who lack the amount of income which is necessary * * * to

In my view, Art. XXXIV on its face constitutes invidious discrimination which

The Court, however, chooses to subject the article to no scrutiny whatsoever

'Section 1. No low rent housing project shall hereafter be developed,

See, e.g., W. Crouch, The Initiative and Referendum in California (1950).

California law authorizes the formation of Renewal Area Agencies whose

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