Judge Voids Rule on Hiring Firms

City officials Wednesday vowed to revise their minority contracting program after a Superior Court ruling deemed it in violation of Proposition 209, the voter-approved measure that prohibits racial or gender preferences by public entities.

City officials also plan to appeal the judge’s order and seek a stay of an injunction now blocking them from enforcing the law, said Matt Dorsey, spokesman for the San Francisco city attorney.

San Francisco’s program, among the most aggressive in the state, grants firms owned by women and minorities a bid discount and requires all prime contractors to seek out minority and female subcontractors. It has survived numerous court challenges -- on legal technicalities -- since the state’s voters approved Proposition 209 in 1996.

The case decided late Monday by San Francisco County Superior Court Judge James L. Warren, however, was judged on its merits. In a sound defeat for the city, Warren deemed the contracting program unconstitutional.

“As we knew all along from the day Prop. 209 was adopted, the city was on borrowed time,” said Sharon Browne, an attorney for the Pacific Legal Foundation, the conservative advocacy group that successfully challenged the program on behalf of two white male contractors.

The ruling comes four years after the California Supreme Court deemed San Jose’s program in violation of Proposition 209, for similar reasons.

Plaintiffs relied on that decision in pressing their case against San Francisco. City officials, however, argued that their program was constitutional because it sought to rectify specific past discrimination by city departments against women- and minority-owned businesses in the awarding of public contracts.

They also argued that applying Proposition 209 to invalidate the ordinance would violate the Equal Protection Clause of the California Constitution, which prohibits discrimination.

But in his ruling, released late Tuesday, Warren said the program did not pass constitutional muster.

“The intent of the voters in adopting Proposition 209 was to outlaw race- and sex-based programs irrespective of the good will and moral position behind any particular program,” wrote Warren, who granted a permanent injunction forbidding the city from applying the ordinance.

The city had altered its minority contracting program five times since 1984, most recently last year, when the Board of Supervisors approved the 10% bid discounts for firms owned by women and minorities.

City officials declined to elaborate Wednesday on how a new program could be crafted to comply with the law, but said they were studying the issue.

“San Francisco is committed to ensuring full and equitable opportunities for minority- and women-owned business enterprises,” Mayor Gavin Newsom said in a statement.

“I am moving to introduce substitute legislation immediately to the Board of Supervisors to ensure contracting advantages to local, economically disadvantaged business enterprises.”