Thursday, August 4, 2014
C.A. Revives Challenge to Diversity Mandate for Redistricting Body
By KENNETH OFGANG, Staff Writer
A challenge to the way members of California’s decennial reapportionment commission are appointed was reinstated yesterday by the Third District Court of Appeal.
The court said former University of California Regent Ward Connerly made a prima facie showing that a state initiative’s requirements for appointing some of the members of the commission violates the federal Equal Protection Clause. Proposition 11 requires that six of the 14 members of the California Citizens Redistricting Commission be appointed in a manner that “reflects this state’s diversity, including, but not limited to, racial, ethnic, geographic, and gender diversity.”
The measure does not set forth any particular formula or standard for measuring diversity. But Connerly argued in his complaint that “[a]n applicant who does not make the commission ‘diverse’ is punished by having his or her application rejected because of race, ethnicity or sex.”
Proposition 11, enacted in 2008, amended the California Constitution to transfer the authority for establishing Assembly, Senate, and Board of Equalization electoral district boundaries from lawmakers to the 14-member commission. It was amended in 2010 to add congressional redistricting to the commission’s jurisdiction.
Eight commission members are randomly selected after the initial applicant pool has been narrowed, first to 60 by a panel of state auditors, then to 36 by state legislative leaders. Those eight then choose the remaining six from those left in the pool.
The Connerly suit did not challenge the districts drawn by the first group of commission members, effective from the 2012 elections, but would affect the selection of future commissioners following the 2020 census.
Connerly, represented by the Pacific Legal Foundation, initially claimed that the diversity provision violated Proposition 209, the 1996 initiative backed by Connerly and then-Gov. Pete Wilson amending the state Constitution to ban racial and gender preferences in public hiring, education, and contracting.
But after Sacramento Superior Court Judge Michael Kenny sustained the commission’s demurrer without leave to amend, on the ground that Proposition 209 does not apply to the appointment of public officials, the plaintiffs changed their legal theory to one based on the federal Constitution.
Connerly is entitled to litigate his new theory, Justice Elena Duarte explained yesterday, because of “a counterintuitive quirk of California appellate law”—a statutory exception to the rule against raising new legal theories on appeal.
Code of Civil Procedure §472c provides that a plaintiff may propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court “abused its discretion” in not granting leave to amend. In a footnote, Duarte commented that the terminology is unfair, since it permits a reversal even though the trial judge’s ruling was undisputedly correct on the basis of the record before him.
The defendants’ argument that the judgment should be affirmed because they had no opportunity to litigate the issue, the justice said, ignores the statute and, perhaps inadvertently, concedes that the “plaintiffs have articulated a new legal theory that necessitates a factual resolution” rather than the sustaining of a demurrer.
Because the outcome of the litigation will turn on matters as to which evidence will have to be considered, including the defendants’ claim of a compelling state interest in having a diverse commission membership, §472c requires reversal, Duarte wrote.
The case is Connerly v. California Citizens Redistricting Commission, 14 S.O.S. 3934.
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