Judge Orders Lungren to Revise Description of Prop. 209

In a major victory for opponents of Proposition 209, a Sacramento County Superior Court judge ruled Thursday that the ballot language written by Atty. Gen. Dan Lungren is misleading because it omits the phrase “affirmative action.”

Lungren was ordered by Judge James T. Ford to rewrite the language for the state’s official voter information pamphlet, but said Thursday afternoon that he will appeal the decision instead.

The fight over language is so critical that many activists believe it could determine the fate of Proposition 209, the initiative on the November ballot that would ban affirmative action for women and minorities in state hiring, contracting and college admissions.

Opponents of the measure say poll results lead them to believe they can win if the election is perceived to be about affirmative action, but that they probably would lose a fight over “special preferences or quotas.”

“If the judge had not ruled as he did, it would have put [opponents of] Proposition 209 at extreme risk,” said Clyde W. Rainwater, a representative for the National Assn. for the Advancement of Colored People, which opposes the measure. “We are very pleased. It is clear that the attorney general used an impermissible opportunity to author bias in an impartial document.”

At issue is the state’s official voter pamphlet, which describes Proposition 209 in bold letters as a “Prohibition against discrimination or preferential treatment by state and other public entities.”

Opponents of the measure filed suit to challenge that language, contending that it does not make clear that the measure would end affirmative action programs that have benefited women and minorities.

In ruling from the bench after about three hours of testimony, Ford rejected the attorney general’s contention that the measure is properly described as one that seeks to prevent discrimination and outlaw special preferences.

Instead, in a rare intervention, Ford said the nation has a quarter-century of experience in using the term “affirmative action” to describe policies that allow the government to consider gender or ethnicity in hiring or contracting decisions. Those policies are targeted for elimination by the ballot measure.

“The court is satisfied by clear and convincing evidence that the attorney general has not fully stated the main purpose and the chief point of the initiative,” Ford said. “The determination by this court [is] that the chief purpose of this initiative is to effect change with respect to affirmative action programs in the state of California.”

Lungren, a strong backer of the measure, rejected the judge’s finding that his language was misleading. He, like other proponents of the measure, contends that the phrase “affirmative action” is inappropriate because it is imprecise.

Proponents say, for example, that the initiative would not eliminate all affirmative action programs and, at the same time, would affect some programs not considered to be affirmative action.

“Obviously we would disagree” with the judge’s ruling, said Steve Telliano, Lungren’s spokesman. “There is no common agreement on the fate of affirmative action programs which do not allow preferences or discrimination.”

The title and much of the seven sentences in the attorney general’s ballot summary are excerpted almost verbatim from the language in the initiative. But Ford ruled that the attorney general has an obligation to disclose the “true meaning” of an initiative--even if it is not included in the measure’s language.

He also said he is concerned that proponents of the initiative have been outspoken about the fact that affirmative action is a target of their proposal, “but the attorney general ignored that.”

Ford acknowledged that not all affirmative action programs would be affected by the initiative. For example, some programs that receive federal funding would remain, so that the state would not lose financing. But Ford said those distinctions are spelled out elsewhere in the ballot pamphlet, and the attorney general could refer to some of those provisions when he rewrites the language.

Telliano said, however, that Lungren will appeal because he disagrees with the judge’s finding that the attorney general must derive the “true meaning” of an initiative’s intent.

“We were using the language of the initiative itself and were as objective as possible,” Lungren said in a statement.

The voter pamphlet is due at the printer’s by Aug. 13 in order to reach voters before the November election. For each proposition, the document contains a title and summary written by the attorney general’s office, an analysis and fiscal impact statement written by the independent legislative analyst’s office, and a pair of arguments for and against the proposal written by representatives from the issue’s opposing sides.

In addition to opponents’ complaints about the ballot title, Ford also heard several other complaints about the language.

Proponents of the measure filed two lawsuits--one complaining about the legislative analyst’s report and another alleging inaccuracies in the opponent’s argument. In both cases, the proponents complained that the language overstated the measure’s possible impact.

Ford made two minor wording changes, but he largely rejected the proponents’ arguments.

At the same time, Ford rejected a charge by opponents that Lungren should be disqualified from writing the title and summary language because he is a supporter of the measure. Lungren’s name is listed in the ballot pamphlet as an author of the proponents’ written argument.

But lawyers for the attorney general said there is considerable precedent for an officeholder responsible for impartial language on one page to also be a partisan author on another. Former Democratic Atty. Gen. John K. Van de Kamp, for example, sponsored three major initiatives in 1990 for which he also wrote the ballot pamphlet’s title and summary language.

Ford also rejected the conflict of interest charge. He said the law only allows him to disqualify an attorney general who is considered a “proponent”--a legal category referring to the individual who submits the measure to the state.