Wilson and Regents Appeal Ruling Allowing Affirmative Action Suit

In an unusual move, lawyers for Gov. Pete Wilson and the UC Board of Regents are appealing a San Francisco Superior Court ruling that gave the go-ahead to a lawsuit the ACLU has filed against the regents.

Wilson and the regents had argued last month that the suit, which alleges that the regents violated the state open meetings law when they decided to roll back affirmative action at UC last summer, should be dismissed because a 30-day statute of limitations had expired. Last week, Judge William Cahill rejected that reasoning, calling it “antithetical” to the intent of the open meetings law.

Jeffrey A. Blair, an attorney in the regents’ Office of General Counsel, said he and his co-counsel decided to appeal Cahill’s ruling--despite the fact that such appeals typically are rejected--because of what he called the “important circumstances” of the case.

“If we are right and the judge erred, then the lawsuit should not even get started,” Blair said. “Since the plaintiffs have as a goal taking depositions from the regents and the governor, [the suit] would be a tremendous waste of resources and time.”

But Dan Tokaji, a lawyer with the ACLU of Southern California, said the appeal is a ploy to avoid a Monday deadline for the governor’s response to the lawsuit.

“They are anxious to avoid filing an answer to our complaint because they will either have to lie or admit that they are breaking the law,” Tokaji said. “That’s the only explanation for their backhanded legal maneuverings.”

Tokaji characterized his opponents’ argument this way: “Basically, it’s: The governor can break the law, lie about it, cover up the relevant records and then say, ‘Whoops, you missed the statute of limitations.’ That’s not the law in California.”

The suit, filed on behalf of the UC Santa Barbara Daily Nexus and one of its student journalists, alleges that the governor’s private telephone conversations with several regents before their historic meeting last July were in effect a “serial meeting” of the board. The Open Meetings Act requires that, with only a few exceptions, the regents meet in public.

The lawsuit seeks an injunction prohibiting the board from implementing its policy banning race and gender preferences in contracting, hiring and admissions. It also seeks a declaration nullifying the policy and asks that Wilson be required to release his telephone records, which he has refused to do, citing executive privilege.

The suit alleges that Tim Molloy, a student reporter, filed nearly 30 formal requests with Wilson’s office seeking the governor’s phone records under the public records act. The suit says that responses from Wilson’s office suggest that records exist of phone calls between Wilson and at least 10 regents before the vote. The board’s definition of a quorum is nine regents.

The governor’s phone records will not prove anything about the substance of the conversations he may have had with regents. But they would provide a road map that could help lawyers depose many of the 26 regents, including the governor.

Lawyers for the plaintiffs acknowledge that if they are successful, the board easily could reaffirm its policy by voting again in open session. But in the meantime, the suit creates an embarrassing situation for the board by alleging “back room” dealings.