Once Upon a Time, Government Worked

12.03.2009
Daily Journal

William T. Bagley represented Marin and Sonoma Counties in the California State Legislature, served the U.S. Civil Rights Commission on its Advisory Board, was appointed by President Ford as the first Chairman of the Commodity Futures Trading Commission and served as a member and Chairman of the California Transportation Commission and as a California Public Utilities Commission Commissioner. Here is an excerpt of his new book, California's Golden Years: When Government Worked and Why, published by U.C. Berkeley's Institute of Governmental Studies.

By William Bagley

The Rumford Fair Housing Act

We had one black legislator in 1963, Byron Rumford (D-Berkeley). He was a quiet black leader of the early '60's. Akin to Ralph M. Brown, he practice his profession for a living - owned and operated a pharmacy in his hometown. The fact that he was also chairman of the Assembly Health Committee posed, in those days, no perceived or real conflict of interest.

During Speaker Jesse Unruh's second full term, the Fair Housing Act was to become most controversial and confrontational.

It is saddening to acknowledge that only four Assembly Republicans voted against housing discrimination in 1963 - the remainder proclaiming the absolute sacrosanct status of ownership property rights, the right to discriminate.

I was one of the four. The others were Milton Marks (R-San Francisco), later a Democrat; Houston I. Flournoy (R-Claremont, Los Angeles), later state controller and almost governor; and dairyman Alan Pattee (R-Monterey), chairman of the Agriculture Committee, who passionately pointed to the portrait of Abe Lincoln hanging over the Speaker's podium during the debate.

Equally sad was the comment made to me by another member: "I don't understand your vote - you don't have any of 'them' in your district."

Then, in the 1964 Goldwater year, a voter initiative called for the repeal of the Rumford Act and would have prohibited comparable future legislation. It passed almost two-to-one, with only Modoc County bucking the statewide trend. The ballot measure was led and basically paid for by the California Real Estate Association.

The California Supreme Court declared the public "repeal" vote unconstitutional (Mulkey v. Reitman, 64 Cal 2d 529, 1966). The rationale, rather simply but somewhat contrived by the court, was and is that since the Rumford Act proclaimed a state policy against discrimination, to prohibit any such policy in the future was actually "state action" in favor of continuing racial discrimination, and thus was violative of the Equal Protection Clause.

In the 1966 campaign, Ronald Reagan "demanded" the simple repeal of the Rumford Act by legislators. In 1967, outright repeal was passed by the Senate and sent by Speaker Unruh to the Judiciary Committee. There we fashioned a compromise that the House sent to the Senate, which non-concurred as expected. A conference committee was appointed late in the session; I was the chairman and I simply never convened the committee. Fair housing remains the law - anyone wish to repeal it today?

Interestingly, a comparable equal protection argument will be made in an attempt to kill Prop. 8, a prohibition on same-sex marriages, passed in November 2008.

It is relevant here to cite People v. Hall, 4 Cal. 399 (1854), an early California Supreme Court decision that reversed a murder conviction of a white defendant - ruling that a Chinese eye witness on the streets of Weaverville was really an "Indian" (and thus could not testify) reasoning that our Native Americans originally traversed the Behring Straits from China. The Court then applied this early California statute: "No Indian or Negro shall be allowed to testify as a witness in any action where a white person is a party." Murder defendant Hall was set free.

This Court opinion, written just 100 years before the U.S. Supreme Court's watershed decision in Brown v. Board of Education, continues with this rationale, at pages 404-05:

We have carefully considered all the consequences resulting from a different rule of construction - the same rule which would admit them [Chinese] to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench and in our legislative halls.... This is not speculation which exists...but is an actual and present danger...a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown, differing in language, opinions, color, and physical conformation.

One justice dissented but without comment.

Where the Court found evidence of the Chinese migration is not stated but today's DNA evidence indicates our "Indians" are really Siberian, having migrated first from Africa, then to the Mid-East to Kazakhstan near the Caspian Sea, and then north to Alaska!

Totally irrelevant, but while citing case law this next wonderful citation is passed on to all lawyers. It is for universal usage, to support any proposition for which one can find no case in point:

That no direct authority upon it had been produced must be due alone to the fact that legal evolution had not progressed far enough to develop a needless precedent for a necessary conclusion.

Fields v. Michael, 91 C.A.2d 444 (1949). Just cite the case by name, at page 451, and let the reader then find this quote. You may anger the judge but it can be part of the fun practicing law.

Speaking of attorneys, here is an item of historical interest and present significance. In 1950, state bar membership was about 20,000. Graduating from UC Boalt Hall in 1952 (and passing the bar), my bar number is 23929. State population was about 10 million; today we have close to 38 million, and new attorney bar numbers start above 220,000. Likewise during the same period, alive and active membership has increased from roughly 15,000 to 150,000-plus: a 380 percent increase in population but a 1,000 percent increase in attorneys. There's a message there.

Edited excerpted from California's Golden Years: When Government Worked and Why by William T. Bagley. Copyright © 2009 by the Regents of the University of California Berkeley Public Policy Press, Institute of Governmental Studies. Used by permission.

William T. Bagley is Of Counsel at Nossaman in San Francisco where he concentrates on governmental, administrative and legislative law and processes. He served as a member of the University of California Board of Regents (1989-2002) and was named Alumnus of the Year (2003) by the California Alumni Association.

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