The California Supreme Court yesterday denied review of the Third District Court of Appeal's opinion in C&C Construction v. SMUD. The Sacramento Bee reports that governmental entities will now have to make their minority outreach efforts comply with the California Constitution.
The text of the Bee's article:
Top court lets Prop. 209 ruling stand
By Claire Cooper -- Bee Legal Affairs WriterPublished 2:15 am PST Thursday, December 16, 2004SAN FRANCISCO - The California Supreme Court said Wednesday it will not review lower court rulings requiring the Sacramento Municipal Utility District to dismantle a program that gives preferences to minority contractors.
The case narrows an escape clause in Proposition 209, California's anti-affirmative action initiative. It now becomes a binding precedent statewide unless there's a new Court of Appeal ruling.
Pacific Legal Foundation attorney Sharon Browne, who spearheaded the case against the utility, said it will affect contracting, education and employment throughout California. Agencies won't be allowed to adopt race-conscious programs unless the federal government tells them they must as a condition of receiving federal funds, she said.
But Lawyers Committee for Civil Rights attorney Oren Sellstrom, who led a coalition of civil rights groups in urging a Supreme Court review, said the case "erodes the whole notion of voluntary compliance with federal civil rights law."
He compared it to "saying that a taxpayer can't comply with federal tax laws unless he has substantial evidence that he'll be audited."
Proposition 209 is a state constitutional amendment prohibiting race-based affirmative action in state and local contracting, employment and education. The clause at issue in the SMUD case permits public agencies to take race-conscious action when it's necessary to qualify for federal funds.
In revising its affirmative action program in 1998, two years after the initiative's passage, SMUD adopted a resolution citing Title VI of the 1964 U.S. Civil Rights Act, which bars discrimination on the basis of race, color or nationality in programs and activities receiving federal money. SMUD at the time was getting federal money for six of its projects.
The utility also submitted to the courts a letter it had received in 2000 from the U.S. Department of Energy, stating that a recipient of federal funds must take steps to remedy the effects of past and ongoing discrimination or risk losing the federal money.
The Pacific Legal Foundation persuaded Sacramento Superior Court Judge Richard Park to enjoin the SMUD program as a violation of Proposition 209.
In upholding Park's decision in September, the state's 3rd District Court of Appeal, also in Sacramento, said general federal anti-discrimination requirements aren't enough to justify race-conscious programs in California. The Appeal Court noted that federal authorities hadn't applied their rules to "SMUD's specific situation."
The appellate decision also said the utility had failed to show that race-neutral measures wouldn't achieve compliance with federal law.
Following custom, the state Supreme Court's decision to stay out of the dispute was announced without comment. Only Justices Kathryn Mickle Werdegar and Carlos Moreno dissented.
Arlen Orchard, SMUD's general counsel, said, "While we're disappointed and will obviously comply with the Appeal Court's decision, SMUD will continue to look for ways that its contracting opportunities are broadly available to all parties, regardless of race, gender or national origin."
None of the lawyers could say how many affirmative action programs would be scrapped as a result of the case. Sellstrom said many local entities had assumed "they had to comply both with federal law and state law, but that federal law trumped to the extent there were inconsistencies."
The SMUD case "puts California governments in a bind," he said.
Alisa Fong, a lawyer with the League of California Cities, said that the league had hoped for the Supreme Court's clarification of the Proposition 209 federal-funding exemption, which has been "of interest to other public agencies."
Thursday, December 16, 2004
Sunday, December 12, 2004
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