Wilson’s Affirmative Action Suit Rejected : Courts: Appeals justices refuse to hear case. Governor says he will take the matter to the state Supreme Court.

A divided state Court of Appeal on Tuesday rejected Gov. Pete Wilson’s attempt to gut state affirmative action programs in fast-track legal proceedings.

Wilson filed a lawsuit in August to dismantle several state programs designed to benefit women and minorities. He asked the Court of Appeal in Sacramento, which is considered friendly to conservatives, to allow him to bypass a trial court in his battle against affirmative action.

Legal scholars gave him a 50-50 chance of winning in the Court of Appeal, but liberal activists insisted he had no standing to bring the suit because he had not been personally hurt by affirmative action.

Wilson said he will appeal the ruling to the California Supreme Court, rather than proceed directly to a trial court or let the issue die.

An appeal by Wilson to the state high court could put the conservative justices in an awkward position. Chief Justice Malcolm Lucas has announced his intention to resign in May, and Wilson is expected to elevate one of the six associates to the job. The court, however, might be reluctant to reverse the ruling.

“While I am naturally disappointed with the appellate court’s decision not to take the case,” Wilson said, “I am encouraged that two of the three justices believed the case should be heard, even if not necessarily in the appellate court.”

Wilson needs court approval to dismantle the long-established programs because they were created by the Legislature. The state Constitution prohibits state officials from refusing to enforce a law unless an appellate court has declared it unconstitutional. But a trial in the lower court could drag out the case for years and would be extremely expensive.

Mark Rosenbaum, legal director for the American Civil Liberties Union of Southern California, predicted that Wilson will eventually drop the challenge now that he is no longer a presidential candidate.

“He sued himself,” Rosenbaum said. “He is the only governor who can sue himself and lose.”

Robert Corry, who represented Wilson in the suit, downplayed the significance of the ruling by the three-judge panel. Two of the judges were appointed by Republicans, one by former Gov. Edmund G. (Jerry) Brown Jr.

“We’re currently assessing our options in consultation with the governor,” said Corry, a lawyer for Pacific Legal Foundation, a Sacramento-based nonprofit group of lawyers who file legal actions on behalf of conservative causes.

The ruling did not specify the reasons the judges refused to grant the request for expedited proceedings. Justice Keith F. Sparks, an appointee of Gov. Brown, flatly rejected the petition and Justice Fred K. Morrison, a Wilson appointee, ruled against Wilson, but noted that his decision should not bar Wilson from pursuing the lawsuit in a lower court. Justice George W. Nicholson, appointed by Gov. George Deukmejian, voted to allow Wilson a hearing on the suit.

Wilson, who recently dropped out of the presidential race and endorsed Sen. Bob Dole (R-Kan.), had made an assault on affirmative action the hallmark of his campaign. The programs he is challenging have been made legally vulnerable by recent U.S. Supreme Court rulings.

Liberal activists had urged the Court of Appeal to reject Wilson’s suit on the grounds that a governor can not legally sue himself and cannot annex the courts to advance a political agenda.

“I think the governor is running out of gender and race cards,” Rosenbaum said.