2 Laws Struck Down Under Prop. 209

A Superior Court judge struck down a pair of statewide affirmative action programs Monday, marking the first time a state statute has been overturned by Proposition 209.

The decision by Sacramento Superior Court Judge Lloyd G. Connelly was a mixed bag, however, for Gov. Pete Wilson, the chief plaintiff in the lawsuit. Connelly left intact three of the five state statutes that Wilson had sought to overturn on the basis of Proposition 209.

Wilson responded with a sharp criticism of the judge and a pledge that the case will be appealed.

“While I am pleased that the court has invalidated the two principal racial preference statutes in state contracting, the court’s unwillingness to strike down race and gender-based preferences in public employment can only be described as the result of legal gymnastics that I am confident will be reversed on appeal,” the governor said in a statement.

Despite the passage of Proposition 209 by voters in 1996 and its validation last year by the U.S. Supreme Court, the initiative has yet to be responsible for the dismantling of a single state statute.

The reason is that state agencies are precluded from making their own decisions about which programs are affected by Proposition 209. The state Constitution requires that all programs--even those with race and gender preferences--will remain in effect until they are ruled by a judge to be in violation of the new state law.

Wilson filed his lawsuit in 1996 with the intent of obtaining the judicial orders that would implement Proposition 209.

Two years later, the judge’s first ruling strikes down one statute that--until now--had required 15% of all state contracts for professional bond services to be issued to minority-owned businesses. The statute required another 5% of the bond contracts to go to women-owned businesses.

The second statute struck down by Connelly required similar treatment for minority and women-owned businesses seeking highway and construction contracts from the state.

That statute already had been invalidated last year in a separate federal court case that found the law in conflict with the U.S. Constitution’s equal-rights protection clause. Proposition 209 was not a factor in the case, which was filed by a private contractor who lost a state bid because of the preference for minority-owned companies.

Connelly’s ruling Monday is symbolic in that it recognizes that the state statute is also in violation of Proposition 209.

The construction contracting statute had directed billions of dollars in state funds to women and minority-owned businesses.

State authorities said Monday that they were uncertain how much money the statute for bond service contracts had directed to businesses like those.

Two of the statutes that Connelly upheld require state agencies and community colleges to establish goals and timetables for hiring minority and women workers, until their representation in the work force reflects their share of the state population.

The third statute upheld by Connelly requires major contractors working with the state Lottery to hire minority or women-owned subcontractors.

Connelly ruled that those statutes did not constitute unlawful discrimination.

But Wilson aides were exasperated with Connelly’s ruling, suggesting that it is not possible to recognize race and gender without being discriminatory. In a written statement, the governor also vented his displeasure.

“This flies in the face of Proposition 209’s total ban on preferences,” he said. “The court’s decision illogically suggests that laws that require goals and timetables for some races but not others do not constitute preferences for those races.”

Wilson has barely a month left until he will turn over his office to Gov.-elect Gray Davis, a Democrat who opposed Proposition 209.

Davis could drop the governor’s role as a plaintiff in the lawsuit. But in anticipation of Wilson’s departure, the plaintiffs also included Ward Connerly, former chairman of the Proposition 209 campaign.

Wilson aides said that if Davis decides to drop the suit, it can still be appealed by Connerly.