Wilson to Sue State Over Affirmative Action Laws : Courts: Governor wants appellate court to overturn preference given to women- and minority-owned firms.

SAN FRANCISCO — Gov. Pete Wilson will file a lawsuit today seeking to gut major state programs designed to benefit women and minorities, placing him in the highly unusual position of suing the state he governs.

Wilson, who has made his assault on affirmative action a hallmark of his presidential campaign, will ask the state Court of Appeal in Sacramento to declare unconstitutional affirmative action laws that have been made legally vulnerable by recent U.S. Supreme Court rulings, knowledgeable sources told The Times on Wednesday.

“California’s statutes continue to make distinctions between its citizens in its hiring and contracting practices solely because of their race and ethnicity,” Wilson said in the lawsuit, “despite the absence of any compelling reason to do so.”

In filing the lawsuit, Wilson is taking dead aim at programs approved by the Legislature and signed into law that give minority- and women-owned businesses hundreds of millions of dollars in state contracts and increase the number of women and minorities in the state work force. A ruling could take six months to a year.

The action is certain to win support from conservative activists and renew criticism that Wilson is a political opportunist who is grandstanding by opposing an issue he once supported. Wilson press secretary Paul Kranhold refused to comment on the pending legal action.

“This sounds to me like a fairly strong challenge to some rather vulnerable programs,” said Clark Kelso, a law professor at McGeorge School of Law in Sacramento, who learned of the suit from one of Wilson’s legal strategists.

State Atty. Gen. Dan Lungren will either have to defend the laws at taxpayer expense with state lawyers or hire outside counsel. Lungren, as the lawyer for state agencies, declined to represent the governor in the lawsuit, according to the state official.

Wilson needs an appellate court ruling to dismantle the long-established programs because the Legislature created them. The state Constitution prohibits state officials from refusing to enforce laws unless an appellate court has declared them unconstitutional.

Wilson’s office contends that the state spends $12.7 million annually to administer the programs. The governor will be represented in court free of charge by the conservative Pacific Legal Foundation, a Sacramento-based nonprofit legal advocacy group that has successfully challenged affirmative action in the past.

The lawsuit crowns an affirmative action assault the governor began several months ago. He already has disbanded advisory boards and councils that monitor the state’s compliance with affirmative action goals, ordered a survey of the costs of programs and prodded the University of California Board of Regents into dropping affirmative action in hiring and admissions.

The regents’ decision was a major boon to Wilson’s presidential campaign. The episode gave Wilson wide national media exposure and pushed up his poll ratings after weeks of a campaign that seemed unable to get off the ground.

His targets this time include a state program that asks agencies to try to award 15% of state contracts to minority-owned firms, 5% to women and 3% to disabled veterans. The lawsuit is aimed at the portions intended to help women and minorities.

Many minority- and women-owned firms consider this program critical to their continued growth, but some contractors complain that they are unfairly denied government business unless they make strong efforts to subcontract with firms owned by the targeted groups.

Firms that do not meet the goals must demonstrate that they tried to enlist such participation, even if they present the lowest bid.

The program helped targeted businesses receive $385 million of $3 billion in state business in 1993-94. A spokesman for the California Department of Transportation said minority-owned businesses received 8.59%, women 5.84% and veterans 1.9% of $545 million in transportation contracts in 1993-94.

An examination of the program by Wilson’s staff found that Caltrans in 50 instances over four years awarded contracts to firms without the lowest bids because of the affirmative action rules, costing taxpayers an additional $2 million, according to the official working on the lawsuit.

The contracting program has been potentially vulnerable since the U.S. Supreme Court ruled in 1989 that local and state governments must tailor affirmative action programs narrowly to correct documented discrimination. The high court made a similar ruling in June in a case that grew out of a federal government contract.

“These two court cases together say that government affirmative action to help minorities will be allowed only by the same standard that government discrimination against minorities would be allowed . . . ,” said USC Law Professor Erwin Chemerinsky. “Government has to show it is necessary to achieve a compelling governmental interest.”

Municipal programs that were challenged as a result of the 1989 ruling had to disband and undergo retooling after costly studies were undertaken to document prior discrimination.

Affirmative action supporters, fearing a court challenge of the state’s programs, have long wanted the state to do such a study, but Wilson has refused to allow government funds for it.

Wilson’s legal petition also will target affirmative action hiring laws dating back to 1977 and 1978. About 16,000 new employees will be hired by the state next year, largely to replace those who have retired or quit.

“If that law is thrown out, 16,000 state employees . . . are going to be hired without affirmative action goals next year,” said a state official involved in the litigation.

Several legal analysts said the kinds of programs Wilson is attacking may have trouble meeting new rules established by the U.S. Supreme Court.

“The less they look like quotas and set-asides and the more they are based on a foundation, such as remedying past discrimination, the more likely they will be allowed,” Chemerinsky said.

Wilson is filing his suit in the Court of Appeal to obtain a more timely appellate ruling. Kelso, the Sacramento law professor, said he believes there is a 50-50 chance the Court of Appeal will accept the petition without a trial in Superior Court, which would delay an appellate decision by six months.