CORAL CONSTRUCTION, INC., v. CITY AND COUNTY OF SAN FRANCISCO

Filed 4/18/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Story Continued from Part II

The 1989 version of the Ordinance survived a Croson challenge. The federal district court (Associated GeneralContractors v. San Francisco (N.D. Cal. 1990) 748 F.Supp. 1443, 1456) and the Ninth Circuit Court of Appeals (AGCC II, supra, 950 F.2d 1401, 1412-1418) both declined to enjoin the ordinance. And unlike the City of San Jose, here the City has argued vigorously that the record backing the current ordinance presents the extreme case that mandates a narrowly tailored racial preference program to root out intentional discrimination in public contracting in San Francisco.

III. CONCLUSION

Because the trial court declined to decide whether the City presented the extreme case of intentional discrimination in public contracting in San Francisco such that a narrowly tailored remedial preference program could be constitutionally required (Hi-Voltage, supra, 24 Cal.4th at p. 568), the cause is remanded for the limited purpose of adjudicating this issue. In all other respects, the judgment is affirmed.

_________________________

Reardon, Acting P.J.

I concur:

_________________________

Sepulveda, J.

Concurring and Dissenting Opinion of Rivera, J.

Coral Construction, Inc. v. City and County of San Francisco

A107803

In my view, the majority opinion applied a truncated equal protection analysis and thereby reached the erroneous conclusion that California Constitution, article I, section 31 (section 31) does not offend federal constitutional principles. I would conclude that section 31 cannot escape the constitutional review required by Hunter v. Erickson (1969) 393 U.S. 385 (Hunter) and Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457 (Seattle). With respect to that issue, I respectfully dissent and would reverse and remand the portion of the judgment that determined there was no facial equal protection violation.^[1]

The majority readily acknowledges that the effect of section 31 is to create greater political obstacles for those seeking remedial race- and gender-based preferences as compared to those seeking preferences on other grounds (e.g., on the basis of wealth, poverty, disabilities, or age) in the arenas of public education, employment and contracting. (Maj. opn., ante, at p. 27.) Yet the majority concludes that because section 31 is facially neutral and is grounded in good intentions it does not violate equal protection. (Maj. opn., ante, at pp. 23-24, 27-28.)

Hunter and Seattle teach us, however, that even a facially neutral law can be discriminatory if it restructures political access in this wayby selectively burdening only racially conscious legislationbecause it plainly rests on distinctions based on race.   (Seattle, supra, 458 U.S. at p. 485.) Therefore, in assessing the constitutionality of section 31, we must determine not only whether it is neutral or discriminatory in its articulated goals, but also whether the means chosen to accomplish those goals have the effect of violating the rights of minorities and women to participate fully in our political system. Because section 31 creates a two-tiered political structureone for minorities and women and one for all othersit is discriminatory. (Hunter, supra, 393 U.S. at pp. 390-393.)

In reaching this conclusion, I begin with a discussion of the basic principles to be applied.^[2]

I. Political Structure Equal Protection, or the Hunter-Seattle Doctrine

A. The Context

Traditionally, equal protection cases in the political context have challenged legislation that directly attacked the right to vote, such as the redrawing of boundaries to exclude African-American voters (Gomillion v. Lightfoot (1960) 364 U.S. 339), or the reapportionment of districts in order to dilute voting power (Baker v. Carr (1962) 369 U.S. 186; Reynolds v. Sims (1964) 377 U.S. 533 (Reynolds); Avery v. Midland County (1968) 390 U.S. 474 (Avery)). These cases commonly are thought of as vindicating the right to vote guaranteed by the United States Constitutions Fifteenth Amendment, rather than its Fourteenth Amendment (Fourteenth Amendment) guarantees to equal protection. But in most of these cases the courts explicitly enforced not only the citizens right to vote but also their right to be treated equally in the political process.^[3]

Less well known in the arena of political process equal protection jurisprudence are the political structure cases. As has been noted, in these cases, the courts act to guard against a more subtle form of vote dilutionthe reallocation of political power in a way that treats all individuals equally, but operates to the disadvantage of minority groups and their interests. The majority opinion has touched on the three major cases in which the doctrine has been developed and demarcated. In my view, a more in-depth examination of the federal Supreme Courts explication of the doctrine, including a review of arguments made and rejected in those cases, will better inform our analysis of section 31. I therefore discuss each in detail.

B. Hunter

As the majoritys opinion has already described, the voters of Akron, Ohio, repealed a fair housing ordinance and amended the city charter to require that  [a]ny ordinance enacted by the Council of the City of Akron which regulates the use, sale, . . . lease, sublease or financing of real property of any kind . . . on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors . . . at a regular or general election.  (Hunter, supra, 393 U.S. at p. 387.)

The City of Akron defended the measure arguing that, unlike the initiative struck down in Reitman v. Mulkey (1967) 387 U.S. 369, which effectively prohibited the adoption of antidiscrimination ordinances, the charter amendment neither authorized nor encouraged housing discrimination and did not preclude the enactment of a new fair housing ordinance. (Hunter, supra, 393 U.S. at p. 389.) The Supreme Court disagreed, holding that the vice was not in the repeal of the antidiscrimination ordinance, but in requiring that [o]nlylaws to end housing discrimination based on race, color, religion, national origin or ancestry must run the . . . gauntlet [of a referendum] (id. at p. 390), thus placing special burdens on racial minorities within the governmental process (id. at p. 391). The amendment not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect. [The amendment] thus drew a distinction between those groups who sought the laws protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. (Id. at pp. 389-390.)

The fact that the amendment did not, on its face, discriminate against minority groups was not relevant to the courts analysis. It is true the Hunter court explained, the section draws no distinction among racial and religious groups. Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end. But [the charter amendment] nevertheless disadvantages those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor. The automatic referendum system does not reach housing discrimination on sexual or political grounds, or against those with children or dogs, nor does it affect tenants seeking more heat or better maintenance from landlords, nor those seeking rent control, urban renewal, public housing, or new building codes. (Hunter, supra, 393 U.S. at pp. 390-391.) Because the amendment placed special burdens on racial minorities, it was subject to the most rigid scrutiny.  (Id. at pp. 391-392.)

The U.S. Supreme Court was unimpressed with the citys various proffered justifications for the amendment, including its argument that the state is entitled to distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects . . . . (Hunter, supra, 393 U.S. at p. 392.) Acknowledging this to be true as a general matter, the court found that the principle nevertheless furnish[ed] no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. . . . The sovereignty of the people is itself subject to . . . constitutional limitations . . . . (Ibid.)

The court concluded, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any persons vote or give any group a smaller representation than another of comparable size. (Hunter, supra, 393 U.S. at p. 393, citing Reynolds, supra, 377 U.S. 533 & Avery, supra, 390 U.S. 474.)^[4]

C. Seattle

Seattle arose out of a mandatory pupil reassignment program instituted in Seattle to desegregate its schools, called the Seattle Plan. (Seattle, supra, 458 U.S. at p. 461.) A group of Seattle residents formed an organization to oppose the plan. (Id. at pp. 461-462.) The group first attempted to enjoin the Seattle Plan, and when that failed, it sponsored a statewide initiative designed to terminate the use of mandatory busing for purposes of racial integration. (Id. at p. 462.) The initiative prohibited any school district from requiring any student  to attend a school other than the school which is geographically nearest or next nearest the students place of residence . . . .  (Ibid.) But the statute excepted from its prohibition pupil reassignments based upon special education requirements, health or safety hazards, physical barriers or obstacles between the students residence and nearby schools, or unfitness of the neighborhood school due to  overcrowding, unsafe conditions or lack of physical facilities.  (Ibid.) The statute expressly prohibited the use of student assignment methods that had been part of Seattles desegregation plan, such as redefinition of attendance zones, pairing of schools, and use of  feeder  schools. (Id. at pp. 462-463.) A challenge to this statute ultimately made its way to the federal Supreme Court.

Building upon the principle enunciated in Hunter, the U.S. Supreme Court explained that the Fourteenth Amendment prohibits not only the outright denial of the franchise to racial or ethnic groups, but also prohibits a  political structure that treats all individuals as equals, [citation], yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation. (Seattle, supra, 458 U.S. at p. 467.)

Seattles simple but central principle was this: [L]aws structuring political institutions or allocating political power according to neutral principlessuch as the executive veto, or the typically burdensome requirements for amending state constitutionsare not subject to equal protection attack, though they may make it more difficult for minorities to achieve favorable legislation. [Citation.] Because such laws make it more difficult for every group in the community to enact comparable laws, they provid[e] a just framework within which the diverse political groups in our society may fairly compete. [Citation.] . . . But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process. State action of this kind . . . places special burdens on racial minorities within the governmental process, [citation], thereby making it more difficult for certain racial . . . minorities [than for other members of the community] to achieve legislation that is in their interest. [Citation.] Such a structuring of the political process . . . [is] no more permissible than [is] denying [members of a racial minority] the vote, on an equal basis with others. [Citation.] (Seattle, supra, 458 U.S. at pp. 469-470.)

The Supreme Court found this principle to be dispositive. (Seattle, supra, 458 U.S. at p. 470.) In our view, [the initiative] must fall because it does not attemp[t] to allocate governmental power on the basis of any general principle. [Citation.] Instead, it uses the racial nature of an issue to define the governmental decisionmaking structure, and thus imposes substantial and unique burdens on racial minorities. (Ibid.)

The court emphasized that a  simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification. [Citations.] (Seattle, supra, 458 U.S. at p. 483.) For example, had the Akron fair housing ordinance in Hunter merely been defeated by referendum,  Negroes would undoubtedly [have lost] an important political battle, but they would not thereby [have been] denied equal protection. [Citation.] (Seattle, at p. 483.) Similarly, the Washington initiative did not merely repeal the desegregation programs then extant, but also burden[ed] all future attempts to integrate Washington schools in districts throughout the State, by lodging decisionmaking authority over the question at a new and remote level of government. . . . This imposes direct and undeniable burdens on minority interests. If a governmental institution is to be fair, one group cannot always be expected to win, [citation]; by the same token, one group cannot be subjected to a debilitating and often insurmountable disadvantage. (Id. at pp. 483-484.)

The state argued that the statute contained no racial classificationthat it did not even mention  race  or  integration  but merely permitted busing for some purposes while neutrally forbidding it for all other reasons. (Seattle, supra, 458 U.S. at p. 471.) The court provided a twofold response. First, it rejected out of hand the states claim that the law had no racial purpose. Neither the initiatives sponsors, nor the District Court, nor the Court of Appeals had any difficulty perceiving the racial nature of the issue settled by [the initiative]. (Ibid.) Beyond that, the court observed the initiatives effect was to remove the local school boards authority to use pupil assignments to address a racial problemand only a racial problem. In a very obvious sense this disadvantages those who would benefit from pupil reassignment on racial grounds as compared to those who would benefit from pupil reassignment for any other purposes; this work[s] a reallocation of power of the kind condemned in Hunter. (Id. at pp. 474-475.)

The state also argued that the initiative did not work any reallocation of power; after all, the state has ultimate authority over all of its school districts and is entitled to set educational policy on a statewide basis. Therefore, the initiative worked a simple change in policy rather than a forbidden reallocation of power. (Seattle, supra, 458 U.S. at pp. 475-476.) Conceding the argument was superficially attractive, the court nonetheless soundly rejected it. While States traditionally have been accorded the widest latitude in ordering their internal governmental processes, their ability to do so does not justify the creation of a legislative structure that violates the Fourteenth Amendment. (Seattle, at p. 476.) The issue here, after all, is not whether Washington has the authority to intervene in the affairs of local school boards; it is, rather, whether the State has exercised that authority in a manner consistent with the Equal Protection Clause. (Ibid.)

Finally, the state argued that Hunter had been effectively overruled by subsequent U.S. Supreme Court decisions. According to the state, because Hunter applied a simple  disparate impact  analysis its reasoning was swept away, along with the disparate-impact approach to equal protection, in Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U. S. 252 (1977) [Arlington]. (Seattle, supra, 458 U.S. at p. 484.) While accepting the states legal premisethat facially neutral legislation does not violate equal protection in the absence of discriminatory intentthe court rejected the states characterization of the initiative as neutral. [W]hen the political process or the decisionmaking mechanism used to address racially conscious legislationand only such legislationis singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on distinctions based on race.   (Id. at pp. 484-485.)

D. Crawford

On the same day the U.S. Supreme Court issued its opinion in Seattle it also decided Crawford v. Los Angeles Board of Education (1982) 458 U.S. 527 (Crawford). This decision helps to define the essential characteristics of suspect political restructuring by describing what it is not.

The historical setting of Crawford can be briefly summarized. In 1963 a group of minority students filed a class action against the Los Angeles Unified School District seeking desegregation of the schools. (Crawford, supra, 458 U.S. at pp. 529-530.) After a trial, in 1970 the trial court determined the school was substantially segregated in violation of the State and Federal Constitutions. (Id. at p. 530.) The California Supreme Court affirmed, but relied only on the equal protection clause of the states Constitution, holding that, in California,  school boards . . . bear a constitutional obligation to take reasonable steps to alleviate segregation in the public schools, whether the segregation be de facto or de jure in origin. [Citation.] (Id. at pp. 530-531.) Thus, the California Supreme Court imposed upon California school districts a higher duty to desegregate than was required under the federal Constitution. (See Crawford v. Board of Education (1976) 17 Cal.3d 280.) Accordingly, on remand, a desegregation plan was approved by the court and implemented by the district in 1978. The plan included substantial mandatory school reassignment and transportationbusingon a racial and ethnic basis. (Crawford, supra, 458 U.S. at p. 531.)

In November 1979 the voters of California ratified Proposition I, which amended the state Constitution, and conform[ed] the power of state courts to order busing to that exercised by the federal courts under the Fourteenth Amendment. (Crawford, supra, 458 U.S. at pp. 531-532.) Proposition I provided, in part, as follows:  [N]o court of this state may impose upon the State of California or any public entity, board, or official any obligation or responsibility with respect to the use of pupil school assignment or pupil transportation, (1) except to remedy a specific violation by such party that would also constitute a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, and (2) unless a federal court would be permitted under federal decisional law to impose that obligation or responsibility upon such party to remedy the specific violation of the Equal Protection Clause . . . .  (Crawford, at p. 532.) However, Proposition I did not  prohibit the governing board of a school district from voluntarily continuing or commencing a school integration plan after the effective date of this subdivision as amended.  (Crawford, at p. 532, fn. 6.)

The petitioners in Crawford argued that Proposition I was unconstitutional because it limit[ed] the power of state courts to enforce a state-created right to desegregated schools, [and thus created] a dual court system that discriminates on the basis of race. They emphasize[d] that other state-created rights may be vindicated by the state courts without limitation on remedies. (Crawford, supra, 458 U.S. at p. 536.)

The U.S. Supreme Court acknowledged that if Proposition I had employed a racial classification it would be constitutionally suspect. (Crawford, supra, 458 U.S. at p. 536.) But Proposition I did not embody a racial classification because [i]t neither says nor implies that persons are to be treated differently on account of their race. It simply forbids state courts to order pupil school assignment or transportation in the absence of a Fourteenth Amendment violation. (Id. at p. 537.)^[5]

There is a distinction, the court explained, between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters. (Crawford, supra, 458 U.S. at p. 538.) Thus, the mere repeal of a state-mandated policy addressing a racial issue does not violate equal protection. A contrary rule would limit seriously the authority of States to deal with the problems of our heterogeneous population[ and] States would be committed irrevocably to legislation that has proved unsuccessful or even harmful in practice. (Id. at pp. 539-540.)

The petitioners in Crawford, then, made the only argument remaining to themthat Proposition I was not a mere repeal but, like the enactment in Hunter, was a fundamental alter[ation of] the judicial system so that those seeking redress from racial isolation in violation of state law must be satisfied with less than full relief from a state court.  (Crawford, supra, 458 U.S. at p. 540.) Again, the court disagreed. The charter amendment in Hunter involved more than a mere repeal of the fair housing ordinance because in Hunter persons seeking antidiscrimination housing lawspresumptively racial minoritieswere singled out for mandatory referendums while no other group . . . face[d] that obstacle. [Citation.] By contrast, . . . Proposition I is less than a repeal of the California Equal Protection Clause [because] after Proposition I, the State Constitution still places upon school boards a greater duty to desegregate than does the Fourteenth Amendment. (Crawford, at p. 541, italics added.) Similarly, under Proposition Iunlike the initiative in Seattleracial minorities retained the right to seek desegregation plans from their local districts that included racial busing. Proposition I did not restructure the political or judicial process; it merely implemented the peoples determination that the standard of the Fourteenth Amendment was more appropriate for California courts to apply in desegregation cases than the standard repealed by Proposition I. (Crawford, at p. 542, fn. omitted.)^[6]

Thus, Proposition I differed from the Seattle and Hunter legislation in a critical respect. The Seattleinitiative created  distinctions based on race  (Seattle, supra, 458 U.S. at p. 485) by embedding racial busing prerogatives at the statewide level while leaving all other busing decisions to the school boards. The Hunter ordinance created distinctions based on race by subjecting race- or religion-based fair housing laws to a referendum but permitting all other fair housing laws to be adopted by ordinance. (Hunter, supra, 393 U.S. at pp. 389-390.) Proposition I, in contrast, was racially neutral because it forbade court-ordered busing not just for racial purposes, but for any purpose (in the absence of a federal constitutional violation) (Crawford, supra, 458 U.S. at p. 537.), and so did not implicate political structure equal protection.

E. Summary and Application

The principles enunciated in Hunter, Seattle, and Crawford can be distilled to a simple formula: A law that mere[ly] repeal[s] legislation benefiting racial minorities, but does not reallocate political power (i.e., does not restrict future legislation), raises no constitutional red flags. (Hunter, supra, 393 U.S. at p. 390, fn. 5; Seattle, supra, 458 U.S. at p. 483; Crawford, supra, 458 U.S. at p. 539.) And a law that reallocates political power, but does so according to neutral principles, does not implicate political structure equal protection because it imposes the same political burdens on all who would seek beneficial legislation. (Crawford, supra, 458 U.S. at p. 537; Seattle, supra, 458 U.S. at pp. 469-470.) But a law that repeals existing beneficial legislation and reallocates power according to nonneutral principlesby making beneficial race-based legislation more difficult to achieve than similar legislation benefiting all othersis  no more permissible than [is] denying [minorities] the vote, on an equal basis with others.  (Seattle, supra, 458 U.S. at p. 470.)

Applying this formula, one cannot escape the conclusion that section 31 violates equal protection. Section 31 repealed all preferences benefiting women and minorities in public employment, education and contracting. But it was not a mere repeal. Section 31 also prohibited future race- and gender-based preferences. In order to accomplish that prohibition it altered the political landscape according to nonneutral principles. Section 31 moved to the most inaccessible political levela state constitutional amendmentthe adoption of race- and gender-based preferences. No other preferencessuch as those favoring veterans, the elderly, the disabled or the economically disadvantagedwere so affected, and they continue to be available at any and all levels of government. In this way, like the amendment in Hunter and the initiative in Seattle, section 31 has placed a special political burden on minorities and women not imposed on others. It is therefore subject to  the most rigid scrutiny.  (Hunter, supra, 393 U.S. at pp. 391-392.)^[7]

This case presents a concrete example. Under section 31, in the operation of its public contracting the City and County of San Francisco (City) can grant special benefits to locally-owned businesses (see, e.g., S.F. Admin. Code, ch. 6, 6.4), to economically disadvantaged businesses (see, e.g., id., ch. 14A), or to any other individuals or affinity groups, such as veterans, seniors, or persons with disabilities, but the City cannot grant special benefits on the basis of race or gender (unless one of the narrowly drawn exceptions in section 31 can be shown to apply). Broadly stated, women and minorities seeking remedial race- or gender-based policies in San Francisco contracting practices must mount a statewide campaign to amend the California Constitution; any others seeking preferences in San Francisco contracting practicese.g., based upon residency or economic statusneed only convince the board of supervisors to adopt an ordinance. Section 31 thus restructures the political process in a way that specifically and selectively burdens race- and gender-conscious legislation. It is therefore subject to strict scrutiny.^[8]

Respondents, Coral Construction, Inc., and Schram Construction, Inc., (collectively respondents) contend the Hunter-Seattle doctrine does not apply to section 31. Theyand to a more limited extent, the majorityrely on the reasoning deployed in Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692 (Wilson II). In my view, Wilson II is not faithful to the principles enunciated in Hunter and Seattle.^[9] And because Wilson II is routinely cited as authority for the facial constitutionality of section 31, I turn now to a discussion of that decision.

II. The Wilson II Decision

I begin with a point of general agreement. For purposes of its analysis, the Ninth Circuit in Wilson II accept[ed] without questioning the district courts findings that Proposition 209 burdens members of insular minorities . . . who otherwise would seek to obtain race-based and gender-based preferential treatment from local entities. (Wilson II, supra, 122 F.3d at p. 705, fn. omitted.) This can hardly be disputed.

Section 31 was specifically designed to eliminate existing race- and gender-conscious affirmative action programs. Although section 31 also prohibits discrimination based on race and gender, this provision added nothing to existing law. As the California Supreme Court stated, quoting Coalition for Economic Equity v. Wilson (N.D.Cal. 1996) 946 F.Supp. 1480, 1489 (Wilson I),  the people of California meant to do something more than simply restate existing law when they adopted Proposition 209.  (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 561 (Hi-Voltage).) This  something more  is succinctly summarized in Chief Justice Georges concurring and dissenting opinion in Hi‑Voltage: [An] overview of the ballot pamphlet materials relating to Proposition 209 makes several points clear. First, the measures principal purpose clearly was to limit the types of affirmative action programs that governmental entities could employ in three areaspublic employment, public education, and public contracting. Second, the measure was not intended to preclude all governmental affirmative action programs within these areas, but rather was intended to prohibit only those affirmative action programs that discriminate against or grant preferential treatment to any individual or group on the basis of race or gender. (Id. at p. 587.)

Unquestionably, then, section 31 set a higher bar for achieving affirmative action legislation on behalf of women and minorities as compared to all others. Wilson II nonetheless concludes that section 31 does not effectuate a political restructuring at all, because it merely constitutes a proper exercise of state authority to prohibit all state instrumentalities from granting preferences on the basis of race or gender. (Wilson II, supra, 122 F.3d at pp. 706-707.) According to the Ninth Circuit, section 31s comprehensive scopeprohibiting all race and gender preferences by state entitieseffectuates nothing more nor less than the states authority to vest in itself  all decisionmaking authority  (Wilson II, at p. 707, quoting Seattle, supra, 458 U.S. at p. 477), and therefore it does not selectively redistribute political power (Wilson II, supra, 122 F.3d at p. 707).^[10]

Here, the Ninth Circuit appears to have created out of whole cloth an exception to the Hunter-Seattle doctrine that would effectively negate the rule. Wilson II acknowledges that an isolated reallocation of political desegregative prerogatives is constitutionally suspect. (Wilson II, supra, 122 F.3d at p. 706.) Yet it insists that a statewide reallocation of political power with respect to racial and gender matters across multiple governmental arenas does no violence to equal protection. (Id. at p. 707.) Even apart from the fact that this argument was soundly rejected in Seattle, there is no principled analytical distinction between a narrow displacement of political access and a global one. My views on this point are synchronous with those of Judge Norris in his opinion respecting the denial of rehearing en banc in Wilson II. Because I cannot improve upon his eloquent reasoning, I simply repeat it here.

The Hunter-Seattle doctrine holds that it works an injury upon minorities to subject them to a structural disadvantage in the political process. It therefore forbids the State from differentiat[ing] between the treatment of problems involving racial matters and that afforded other problems in the same area. [Citation.] In Seattle, as the panel correctly observes, the State of Washington had inflicted this injury upon minorities at only one level of government: local school districts. What the panel suggests is that if the State inflicts a Hunter-Seattle injury at every level of representative government and differentiates between the treatment of problems involving racial matters and that afforded other problems in local school boards and city councils and the state legislature and state agencies such as the University of California Board of Regents, then the constitutional error is somehow cured. [Citation.] Neither Hunter nor Seattlenor common sense, for that mattersupports the Proposition that expanding the levels at which the State disadvantages minorities will render that action any less constitutionally suspect. (Wilson II, supra, 122 F.3d at p. 715 (dis. opn. of Norris, J., to denial of reh. en banc).)

The Ninth Circuits secondary rationale for shielding section 31 from constitutional scrutiny rests on the assertion that preferences are not guaranteed under the Fourteenth Amendment and therefore they are not protected under the Fourteenth Amendment. According to Wilson II, section 31 does not even implicate the equal protection clause because it does not create an impediment to protection against unequal treatment but only an impediment to receiving preferential treatment. (Wilson II, supra, 122 F.3d at p. 708.)  [I]n the context of a Fourteenth Amendment challenge,  the court reasoned,  courts must bear in mind the difference between what the law permits, and what it requires. [Citation.] (Id. at p. 709.) Pointing out that the federal Constitution permits narrowly tailored affirmative action preferences only if justified by a compelling state interest, the court goes on to state: To hold that a[n] . . . affirmative action program is constitutionally permissible . . . is hardly to hold that the program is constitutionally required. The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits. [] . . . As in Crawford, [i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.  (Wilson II, at p. 709.)

This reasoning is predicated upon two unstated assumptions, both of which are incorrect.^[11]

Story Continued as Part IV

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

^[1]As noted in the majority opinions introduction, section 31 was adopted by the voters approval of Proposition 209 (maj. opn., ante, at p. 1); accordingly, section 31 will occasionally be referred to as Proposition 209. As the majority opinion also notes, the appeal focuses on the portion of section 31 that prohibits race- and gender-based preferences. (Maj. opn., ante, at pp. 1-2.) In referring to section 31, I also address that disputed provision.

^[2]Because the enactments at issue in Hunter and Seattle raised only issues of racial discrimination, this discussion of political structure equal protection will often be couched in terms of the impact on minorities. The analysis, however, would apply equally to laws, like section 31, that create a political structure that disadvantages women.

^[3]For example, in Avery, the court stated: When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. (Avery, supra, 390 U.S. at p. 480.)

^[4]The following year the principle enunciated in Hunter was applied to invalidate a statute that prohibited school desegregation by means of pupil reassignments unless implemented by an elected school board. (Lee v. Nyquist (W.D.N.Y. 1970) 318 F.Supp. 710, 712-713, 720 (Nyquist) [The . . . [l]egislature has acted to make it more difficult for racial minorities to achieve goals that are in their interest. The statute thus operates to disadvantage a minority, a racial minority, in the political process.].)

^[5]The court also recognized that, under conventional equal protection analysis, a facially neutral legislative act with discriminatory intent would be constitutionally suspect, and that evidence of a disproportionate impact of the act on racial minorities could indicate such a motivation. But the court found no such evidence in Crawford. (Crawford, supra, 458 U.S. at p. 544.)

^[6]In his concurrence, Justice Blackmun provided a slightly different analysis. Proposition I did not change the political structure of the decisionmaking process, he wrote, because [s]tate courts do not create the rights they enforce. (Crawford, supra, 458 U.S. at p. 546 (conc. opn. of Blackmun, J.).) The courts merely enforce rights that are created elsewherein the legislature, in local ordinances or in the constitution itself. Because Proposition I removed a remedy only from the courts and did not remove access to any legislative source of rights, the political process was not affected at all. (Ibid.)

^[7]The pertinent legal literature I have located and reviewed overwhelmingly supports this conclusion. (See Appendix to Concurring and Dissenting Opinion, post.)

^[8]As the majority points out, in the extreme case of intentional discrimination (maj. opn., ante, at p. 34) race- or gender-based preferences may be required by the federal Constitution and section 31 has a savings clause excepting such cases (maj. opn., at pp. 30-34). This does not, however, save section 31 from constitutional scrutiny, as the majority seems to imply. (Maj. opn, ante, at p. 28.) First, it is far from clear whether all race- and gender-based preferences that are permitted by the equal protection clause are also required. (See, e.g., Grutter v. Bollinger (2003) 539 U.S. 306, 327-333 [holds that a law schools use of race as a factor for admissions was constitutionally justified, but does not state that it is constitutionally required].) But even if all preferences that survive strict scrutiny were required under equal protection, the unequal political structure created by section 31 is itself a matter subject to constitutional review. While the savings clause would be relevant in determining whether section 31 is narrowly tailored to achieve its goal, it is no substitute for a proper constitutional inquiry requiring, as a threshold matter, demonstration of a compelling state interest.

^[9]Indeed, in a comment on the denial of rehearing en banc in Wilson II, Judge Hawkins of the Ninth Circuit implies that the panel in Wilson II was reading tea leaves rather than hewing closely to precedent (Wilson II, supra, 122 F.3d at pp. 717-718), thus offering one possible explanation for the result in that case. Certainly, it has been argued that the Hunter-Seattle doctrine would not survive if it arrived on the U.S. Supreme Courts doorstep today. (See, e.g., Bell, Californias Proposition 209: A Temporary Diversion on the Road to Racial Disaster (1997) 30 Loyola L.A. L.Rev. 1447, 1454-1459.) On the other hand, the jurisprudential underpinnings of Hunter-Seattle have been strongly embraced in other contexts. (See, e.g., Romer v. Evans (1996) 517 U.S. 620, 633 [[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense].) We, of course, leave to the commentators any speculation about how the high court would treat the question. Our role, as an inferior court, is to make an honest and forthright application of existing precedent. [I]t is not our role to predicthowever accurate our predictions might turn out to be. (Wilson II, supra, 122 F.3d at p. 718 (com. of Hawkins, J., on denial of reh. en banc) citing Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 484.)

^[10]In so holding, the Wilson II court pieces together truncated quotes from the Seattle decision to create the impression that the holding in Seattleexcludes from its purview any legislation effectuating pervasive, statewide policies on racial matters, as distinguished from isolated changes such as occurred in Hunter and in Seattle. (Wilson II, supra, 122 F.3d at pp. 706-707.) Seattle contains no such exclusion. Indeed, it makes clear that while the state retains full authority to adopt legislation which removes local prerogatives, it can only do so in conformance with equal protection requirements. (Seattle, supra, 458 U.S. at p. 480, fn. 23 [[i]t is . . . clear, as we have noted at several points in our opinion, that the State remains free to vest all decisionmaking power in state officials, or to remove authority from local [entities] in a race-neutral manner (italics added)].)

^[11]The Wilson II analysis also seems decidedly asymmetrical: Under its reasoning, preferences designed to eliminate racial discrimination are properly subject to strict scrutiny while a blanket prohibition on the same remedial programs gets a constitutional pass. (Wilson, supra, 122 F.3d at p. 709.)