Metropolitan News-Enterprise


Wednesday, July 30, 3003


Page 1


Court Rejects Challenge to Domestic Partner Ordinance


By DAVID WATSON, Staff Writer


A San Francisco ordinance requiring city contractors to provide domestic partner benefits to their employees is not preempted by a state statute governing creation and registration of domestic partnerships, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The ruling marks the second time the Ninth Circuit has rebuffed an attempt by Ohio-based S.D. Myers, Inc. to invalidate the city’s scheme.

The company was the low bidder in 1997 for a contract to service electrical transformers owned by but not located in the city. Citing “religious and moral principles,” Myers declined to certify to the city that it would comply with the ordinance.

The city then rejected its bid. The company’s constitutional challenge to the ordinance was rejected by the Ninth Circuit in 2001 in S.D. Myers, Inc. v. City & County of San Francisco 253 F.3d 461, but the court remanded to allow consideration of the effect of Family Code Sec. 297 et seq., which was enacted while the case was on appeal.

The state law defines and regulates domestic partnerships. On remand, Judge Claudia Wilken of the Northern District of California ruled it does not preempt the city ordinance.

Writing for a panel that also included Judges A. Wallace Tashima and Kim McLane Wardlaw, Senior Judge Alfred T. Goodwin agreed.

Noting that findings of pre-emption are disfavored under California law, Goodwin declared:

“While the Ordinance and Registration Statute both concern domestic partnerships, they regulate entirely distinct matters.”

The state law specifies who may register for domestic partnerships and how registration must take place, but it “neither addresses discrimination on the basis of domestic partner status, nor regulates the provision of benefits to the domestic partners of employees,” Goodwin wrote. “Furthermore,” he added, “it does not impose any additional obligations on an employer once an employee registers a domestic partnership.”

He said Wilken properly concluded that the measures neither duplicate nor contradict one another.

Nor, the appellate judge said, did the state in enacting the registration statute fully occupy the field of legislation on the topic of domestic partnerships.

Goodwin noted that the state law expressly permits local governments to “retain or adopt ordinances, policies, or laws that offer rights within that jurisdiction to domestic partners.” He rejected Myers’ contention that under that language cities were without power to adopt legislation regulating conduct and activities outside their borders.

The judge pointed out that the appellate court had held in its previous decision that the city was not “acting extraterritorially” in imposing an obligation not to discriminate on its contractors.

Temecula attorney Robert H. Tyler of California Advocates for Faith and Freedom, who represented the company, told the METNEWS he plans to seek either en banc or Supreme Court review of both rulings in the case.

The court’s decision, he said, did not come as a complete surprise.

“We are here in the Ninth Circuit, and I don’t think anyone expects great victories in this area of the law,” Tyler said.

He described the company’s owner as a “Christian man who founded his company upon Christian principles.” Under the ordinance, Tyler said, Myers would be required to comply with the city’s anti-discrimination policies not only for its employees working on the city project, but for company workers outside California who have no connection with the state.

The case is S.D. Myers, Inc. v. City and County of San Francisco, 02-16480.


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