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Court of Appeal, Second District, Division 2, California.

Genoveva CASTRO and Jesus E. Parra, Plaintiffs, Petitioners and Appellants, v. STATE of California; Frank M. Jordan as Secretary of State, State of California; Ben Hite as Registrar of Voters and County Clerk, County of Los Angeles, Defendants and Respondents.

Civ. 33529.

Decided: July 28, 1969

Don B. Kates, Jr., James D. Lorenz, Jr., Los Angeles, Gary Bellow, Carol Ruth Silver and Don B. Kates, Jr., Chaparro, Perez & Buckley and R. Chaparro, A. L. Wirin, Fred Okrand, Los Angeles, and Laurence Sperber, Beverly Hills, for plaintiffs, petitioners and appellants. Thomas C. Lynch, Atty. Gen., Charles A. Barrett, Asst. Atty. Gen., Sanford N. Gruskin, and A. Wallace Tashima, Deputy Attys. Gen., for defendants and respondents State of California and Frank M. Jordan, as Secretary of State. John D. Maharg, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for defendant and respondent Benjamin S. Hite, as Registrar of Voters.

By their ‘Complaint for Declaratory Judgment and Petition for Alternative and Peremptory Writs of Mandate’ filed in the court below, appellants Genoveva Castro and Jesus E. Parra challenge ‘the constitutionality of so much of California Constitution Article II, Section 1, as reads: ‘* * * no person who shall not be able to read the Constitution in the English language * * * shall ever exercise the privileges of an elector in this State * * *’, and Election Code Sections 100, 310(g), variously implementing Article II, Section 1, by requiring that all voters be literate in English and that the affidavit which they must sign for registration contain a declaration of such literacy.' Their prayer for relief includes the following:

‘1. That the Court issue a Declaratory Judgment that the English literacy requirement of Article II, Section 1 of the California Constitution is unconstitutional as applied to Petitioners and other Spanish literates; * * *3. That this Court issue its Peremptory Writ of Mandate commanding Respondents to determine the qualifications of Petitioners without reference to the English literacy requirement of Article II, Section 1 of the California Constitution and to print a reasonable percentage of the ballots at each election in Spanish, or otherwise to facilitate Petitioners' ability to vote in Spanish.’ The present appeal is taken from the ensuing judgment which provides:

‘1. That the English literacy requirement of Article II, section 1, of the California Constitution is valid and constitutional in all respects, including its application to petitioners-plaintiffs, and each of and to all persons who are literate in Spanish but not literate in English and who are not subject to the provisions of Title 42, section 1973b, of the United States Code;

‘2. That the English literacy requirement of Article II, section 1, of the California Constitution makes a valid classification and is not discriminatory under either the Fourteenth Amendment or Fifteenth Amendment of the United States Constitution, or otherwise;

‘3. That said literacy requirement is designed to serve a legitimate state interest;

‘4. As to persons who can read and write Spanish but who cannot read or write English, there is a valid classification between such persons who had an education of at least the sixth grade in an American Flag school and those that did not, and no discrimination in the provisions of Article II, section 1, of the California Constitution results from the provisions of Title 42, section 1973b, of the United States Code.’

Appellants make no specific assignment of error but present numerous arguments in opposition to the determinations made by the trial court. Insofar as these contentions have not been heretofore resolved by the decisions of our highest court, we find appellants' argument unpersuasive.

The instant action was presented on a set of stipulated facts so terse and lacking in particularity that it is apparent that appellants are more intent upon obtaining a pronouncement on a constitutional question considered in the abstract than in establishing their own personal and individual rights to vote in this state.

It was stipulated that each appellant had been born in the United States but that neither ‘has ever received schooling in any public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico.’ Appellants, however, have completed three and four years, respectively, ‘of schooling in schools of the Republic of Mexico and ha[ve] attained at least the degree of literacy in Spanish required for completion of said schooling.’ Appellants ‘are able to read an accurate Spanish translation of the California Constitution and can write their names' but neither ‘can read English and on that ground each has been refused registration’ by respondents.

It was further stipulated that ‘the question of access of [appellants] to Spanish language political information be determined on the basis of materials available in Los Angeles County’ and that ‘[w]ithout any implications as to their content, the following newspapers and magazines printed wholly or in part in Spanish are available in Los Angeles County: [various publications listed].’ A similar stipulation enumerated several radio stations broadcasting wholly or in part in Spanish without any implications as to the content of their program material. Finally, it was stipulated that the Los Angeles public schools provided tuition-free courses for those interested in learning the English language and that appellants had ‘resided close to one or more’ of such schools for five and twenty-one years, respectively.

We have concluded that the trial court properly determined that the decision of the United States Supreme Court in Lassiter v. Northampton County Bd. of El., 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 sustains the constitutionality of the challenged portion of Article II, section 1 of the California Constitution. In passing upon an essentially identical provision in the Constitution of North Carolina, the court in Lassiter stated at pages 50–53, 79 S.Ct. at page 989:

‘We come then to the question whether a State may consistently with the Fourteenth and Seventeenth Amendments apply a literacy test to all voters irrespective of race or color. The Court in Guinn v. United States, supra, 238 U.S. [347 at] 366, 35 S.Ct. 926, 59 L.Ed. 1340, disposed of the question in a few words, ‘No time need be spent on the question of the validity of the literacy test considered alone since, as we have seen its establishment was but the exercise by the state of a lawful power vested in it not subject to our supervision, and indeed, its validity is admitted.’

‘The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised, [citations], absent of course the discrimination which the Constitution condemns. * * *

‘We do not suggest that any standards which a State desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record [citation] are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters. The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot. Literacy and illiteracy are neutral on race, creed, color, and sex, as reports around the world show. Literacy and intelligence are obviously not synonymous. Illiterate people may be intelligent voters. Yet in our society where newspapers, periodicals, books, and other printed matter canvass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. [Citation.] It was said last century in Massachusetts that a literacy test was designed to insure an ‘independent and intelligent’ exercise of the right of suffrage. [Citation.] North Carolina agrees. We do not sit in judgment on the wisdom of that policy. We cannot say, however, that it is not an allowable one measured by constitutional standards.' (Emphasis added.)

We disagree with appellants' contention that the teaching of the Lassiter decision has been repudiated by the more recent rulings in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828, and Cardona v. Power, 384 U.S. 672, 86 S.Ct. 1728, 16 L.Ed.2d 848. As the United States Supreme Court itself was at pains to point out in Katzenbach v. Morgan, supra, at page 649, 86 S.Ct. 1717, its decision in Lassiter ‘is inapposite’ to the issue there under consideration.

The court in Katzenbach v. Morgan, supra, 384 U.S. 641, 86 S.Ct. 1717, was called upon to determine only whether or not Congress had exceeded the authority granted it by section 5 of the Fourteenth Amendment when it enacted section 4(e) of the Voting Rights Act of 1965 which ‘in the respects pertinent to these cases, provides that no person who has successfully completed the sixth primary grade in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English shall be denied the right to vote in any election because of his inability to read or write English.’ (Katzenbach v. Morgan, supra, p. 643, 86 S.Ct. p. 1719.) Section 168(2) of the New York Election Law, McKinney's Consol. Laws, c. 17, provided, in pertinent part, that persons educated to the sixth grade level in Puerto Rico schools should be eligible to vote only if ‘instruction is carried on predominantly in the English language.’

It is apparent from a reading of the Katzenbach decision that both Congress and the court were impressed by the ‘invidious discrimination’ inherent in the classification of citizens for suffrage purposes solely on the basis of the curriculum established in American-flag schools (schools located within United States jurisdiction) particularly in view of ‘the unique historic relationship between the Congress and the Commonwealth of Puerto Rico, * * * the Federal Government's acceptance of the desirability of the use of Spanish as the language of instruction in Commonwealth schools, and the fact that Congress has fostered policies encouraging migration from the Commonwealth to the States.’ (Katzenbach v. Morgan, supra, 384 U.S. at p. 658, 86 S.Ct. at 1727.)

The California constitutional and statutory provisions challenged in the present case establish no classification comparable to that found in the New York Election Law, nor any such potential for invidious discrimination, and Congress to date has not seen fit to enact legislation dealing with the voting rights of persons educated in the schools of other nations not subject to American jurisdiction.

Appellants' contention that because of their stipulated degree of literacy in Spanish achieved in the schools operated by the Republic of Mexico, they should be extended special rights and privileges denied to the English speaking citizen who is completely illiterate, or who is literate only in some language other than English or Spanish, is quite unpersuasive. In point of fact, since the advent of radio and television with their extensive presentations of news, political analyses and campaign addresses by candidates for public office, a more appealing case might be made on behalf of the adult English speaking citizen who is totally illiterate or literate only in a language which, unlike Spanish, does not provide easily attainable English literacy to anyone willing to make a reasonable effort to learn the prevailing language of his fellow citizens and the language in which all affairs of government are conducted.

In any event, however, one need not endeavor to evaluate the wisdom of linguistic educational requirements, a legislative rather than a judicial consideration, in order to perceive a legitimate state interest that may be served thereby. It certainly does not appear unreasonable for a state to require that its electorate be able to listen with understanding to the addresses of major political candidates without resort to cold, and perhaps, inaccurate translations appearing in the limited number of Spanish news media. In this regard it may be noted that appellants, unlike the petitioner in Cardona v. Power, supra, 384 U.S. 672, 86 S.Ct. 1728, do not allege that they read or listen to the enumerated Spanish news media available in Los Angeles County. Moreover, appellants have not shown that such media provide an adequate amount of news and comment relating to social, political and governmental affairs. Finally, since the stipulation regarding available Spanish news media is limited to Los Angeles County, it is apparent that these media would be of little or no avail to Spanish literates residing in other areas of this state.

Although certainly not a controlling consideration, it nevertheless is a fact that in California a very large part of the material on a typical ballot is designed to set forth and explain proposed measures, including amendments to the state Constitution and local charter amendments. The requirement advocated by appellants that this extensive and technical matter be translated and printed in Spanish merely to avoid the necessity that they attain the required degree of literacy in English presents a not insignificant item of state interest. As observed by Justices Harlan and Stewart in their separate opinions in Katzenbach v. Morgan, supra, 384 U.S. 641, 663, 86 S.Ct. 1717, 1733:

‘[I]t is noteworthy that the Federal Government requires literacy in English as a prerequisite to naturalization, 66 Stat. 239, 8 U.S.C. § 1423 (1964 ed), attesting to the national view of its importance as a prerequisite to full integration into the American political community.’ (Cf. also, Camacho v. Rogers, D.C., 199 F.Supp. 155; Camacho v. Doe, 31 Misc.2d 692, 221 N.Y.S.2d 262, aff'd 7 N.Y.2d 762, 194 N.Y.S.2d 33, 163 N.E.2d 140; Cardona v. Power, 16 N.Y.2d 639, 261 N.Y.S.2d 78, 209 N.E.2d 556 (vacated on other grounds, 384 U.S. 672, 86 S.Ct. 1728.)

Lastly, we hold that the trial court did not err in refusing to find that the challenged provision of our Constitution was enacted for discriminatory purposes. The selected quotations from various editorial comment, letters to the editor and reports of legislative debate appearing in certain newspapers at the time of its consideration in 1894 fail to establish this fact. At most these gleanings do but demonstrate a concern on the part of certain persons that the effectiveness of the democratic processes might be impaired if voting rights were extended to naturalized immigrants before they had had an opportunity to absorb and assimilate the cultural heritage of our unique form of government. Moreover, even if we were to agree that these news reports demonstrated that certain of the supporters of the challenged constitutional provision were motivated by improper considerations, we could not for that reason overturn an enactment which is unassailable on the basis of its content and valid objectives expressed therein. There is no contention made in the instant case that the provision is being administered so as to discriminate against appellants or any other person. In upholding a statute prohibiting the burning of a draft card the court in United States v. O'Brien, 391 U.S. 367, 382–384, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672, stated:

‘O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the ‘purpose’ of Congress was ‘to suppress freedom of speech.’ We reject this argument because under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional.

‘It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated:

“The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.' McCray v. United States, 195 U.S. 27, 56, 24 S.Ct. 769, 776, 49 L.Ed. 78 [95] (1904).

‘This fundamental principle of constitutional adjudication was reaffirmed and the many cases were collected by Mr. Justice Brandeis for the Court in State of Arizona v. State of California, 283 U.S. 423, 455, 75 L.Ed. 1154 [1165], 51 S.Ct. 522, 526, (1931).

‘Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.'

The judgment is affirmed.

HERNDON, Associate Justice.

ROTH, P. J., and WRIGHT, J., concur.