The California Supreme Court decided Wednesday to examine whether Gov. Pete Wilson and the UC Board of Regents can be tried on charges that they illegally rounded up votes before banning affirmative action at the state's elite university system.
Six of the court's seven justices voted to review a ruling by a Court of Appeal in San Francisco that allowed a lawsuit against Wilson and the University of California regents to proceed.
The suit, filed by the ACLU and other public interest organizations, accuses Wilson and the regents of violating a state open-meetings law in 1995 by making private telephone calls to lock up the ban before the public vote.
Both sides in the case said they were pleased that the Supreme Court had agreed to review the dispute. At issue is not only the appeals court's decision allowing the suit to proceed, but its ruling that the suit was filed too late to nullify the regents' vote ending affirmative action.
The ACLU has asked the state Supreme Court to overturn that part of the ruling; Wilson wants the entire case dismissed.
"We asked for review and we expect they will rule in favor of our petition," said Sean Walsh, a spokesman for the governor.
Dan Tokaji, a lawyer for the American Civil Liberties Union of Southern California, also predicted victory.
"Our complaint raises a very serious allegation that the governor and the regents went behind the backs of the people of California," Tokaji said. "The issue before this court is whether the governor and the regents can violate the law, deny wrongdoing and get off scot-free."
The lawsuit was filed on behalf of the UC Santa Barbara Daily Nexus, a student newspaper, and a former Nexus reporter who tried to obtain the telephone logs of Wilson and the other regents.
The newspaper is asking that Wilson be required to release his telephone records, which he has refused to do, claiming executive privilege. The other regents also have refused to release telephone logs, the ACLU said.
Jim Wheaton, senior counsel of the First Amendment Project, which also is representing the student newspaper, said the state Supreme Court has traditionally been strong in enforcing laws on public meetings and open records.
Even if the ACLU prevails, the regents could vote a second time to ban affirmative action. But a verdict against Wilson and the other regents would be a political embarrassment.
The case also conceivably could be prosecuted criminally. Violation of the state open-meetings act is a misdemeanor, punishable by a maximum six months in jail and a $1,000 fine.
UC spokesman Brad Hayward said UC officials had not yet seen the court's order. But he said the university wants the Supreme Court to dismiss the case because it will waste money and time and have "little if any practical effect."
The state Supreme Court's one-page order that granted review was signed by all the justices except Ming W. Chin.