Metropolitan News-Enterprise


Thursday, August 23, 2007


Page 1


S.C. Agrees to Hear Proposition 209 Challenge to S.F. Ordinance




The California Supreme Court yesterday agreed to hear a challenge by construction companies to a San Francisco ordinance the plaintiffs claim violates Proposition 209.

Justices, at their weekly conference in San Francisco, voted 5-2 to grant review to the plaintiffs in Coral Construction, Inc. v. City and County of San Francisco, A107803. Only Justices Joyce L. Kennard and Carol Corrigan voted against granting review.

In an April decision, the First District Court of Appeal’s Div. Four largely affirmed a San Francisco Superior Court judge’s ruling that the city’s Minority/Women/Local Business Utilization Ordinance conflicts with the 1996 initiative that prohibits the state from discriminating, or granting “preferential treatment,” on the basis of race, sex, color, ethnicity, or national origin in the fields of employment, education, or contracting.

The contractors, however, represented by the Pacific Legal Foundation, challenged the panel’s decision to reinstate a claim that the local measure is mandated by the U.S. Constitution’s Equal Protection Clause as a narrowly tailored remedial program to remedy pervasive discrimination in public contracting.

The appellate panel said San Francisco Superior Court Judge James Warren, now retired, failed to rule on that claim.

“[T]he court assumed that [Proposition 209] is the last word,” Justice Timothy Reardon wrote. “It is not.  The federal equal protection clause is the last word.  The court had no option but to engage in the appropriate analysis to determine whether the legislative history and supporting documents sustained the City’s claim of discrimination in public contracting and, if so, whether the City had a constitutional obligation to remedy this history by implementing and administering the Ordinance.”

Prior Law Upheld

Reardon noted that a previous version of the ordinance that was also challenged by contractors, on equal protection grounds prior to Proposition 209’s passage, was upheld by both the district judge and the Ninth U.S. Circuit Court of Appeals.

   Justice Patricia Sepulveda concurred in the opinion, but Justice Maria Rivera vigorously argued that Proposition 209 violates the federal constitutional rights of women and minorities to equal treatment in the political process.

There is “no doubt,” she wrote, that Proposition 209 “was engendered not by opposition to all preferences, but by opposition to preferential treatment for racial minorities and women.”

Constitutional Issues

The city, however, did not seek review of the panel’s rulings that  Proposition 209 is not preempted by a treaty, ratified by Congress in 1994, that prohibits racial discrimination; that the measure does not violate U.S. Supreme Court decisions that bar a state from restructuring its political process to make it harder for members of one racial group to obtain beneficial legislation than it is for those in other groups; and that the ordinance does not fall under Proposition 209’s exemption for legislation that is required to maintain eligibility for federal funds.

The revised ordinance, which was enacted in 1998 after more than 250 witnesses testified at a series of public hearings, required the city to give specified discounts to contract bids submitted by bidders who were certified as “women-owned business enterprises” or as “minority-owned business enterprises.” It also required bidders for certain contracts to document their good faith efforts to use MBE and WBE subcontractors.

The ordinance, which had a five-year sunset provision, was reenacted without substantial change in 2003 after the Board of Supervisors concluded, again after a series of public hearings involving substantial public participation, that minorities and women continued to face discrimination “in City contracting and in obtaining contracts in the Bay Area that are not subject to affirmative action programs.”


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