Prop. 209 Faces Delays Despite Appellate Ruling

SACRAMENTO —  State agencies and some major cities and counties plan to press ahead with their affirmative action efforts, even as a federal appellate ruling upholding the anti-affirmative action Proposition 209 becomes final today.

Officials in Los Angeles, San Francisco and elsewhere said Wednesday that they intend to keep affirmative action programs in place. Their reasons range from their opposition to the initiative approved in November to a belief that the measure is unclear. Others say they already comply with the initiative’s requirements.

State officials, by contrast, insist that they would abolish state programs but are barred from doing so by a separate provision of the state Constitution, which requires that state agencies enforce state laws until an appellate court finds them illegal.

“It will take some time to implement Proposition 209, just as it takes time to implement any constitutional provision,” said Daniel Kolkey, Gov. Pete Wilson’s legal affairs secretary.

While foes of Proposition 209 have been focusing their attack in the federal courts for the last 10 months, the affirmative action battle will start moving to the state court system.

Wilson and Proposition 209 champion Ward Connerly filed a suit in Sacramento County Superior Court last year seeking to have state statutes that implement affirmative action declared unconstitutional.

A hearing on the suit is set for Oct. 3. But the case won’t be decided for months, possibly longer.

“It will be business as usual until we get a court ruling,” said attorney Anthony Caso of the Pacific Legal Foundation, which represents Wilson and Connerly.

Attorney Jeffrey Bleich, of the law firm Munger, Tolles & Olson, which is battling the suit by Wilson and Connerly, agreed, but with a caveat.

“It’s the status quo--with the big shadow hanging over it,” Bleich said, referring to last week’s ruling by the U.S. 9th Circuit Court of Appeals affirming Proposition 209.

The federal appellate court ruled that California has the right to enforce Proposition 209, and denied a request by the ACLU and other opponents of Proposition 209 to delay its decision from taking effect, while the opponents appeal to the U.S. Supreme Court.

The ACLU intends to ask the Supreme Court in the coming days to stay the appellate court ruling. But even if the high court refuses to intervene, California’s affirmative action programs won’t end any time soon.

The reason has to do with another far less well known section of the state Constitution. Voters in June 1978 approved the constitutional amendment in the form of Proposition 5. It declares that state agencies cannot act on their own to determine that a state statute is illegal.

Instead, state agencies must await an appellate court ruling that a law is unconstitutional before they stop enforcing it.

The initiative was aimed at limiting the power of state agencies, particularly the Public Utilities Commission, which had become embroiled in controversy when it concluded in the 1970s that federal law barred it from following a state law.

Wilson and Connerly, anticipating the implications of the 1978 provision, filed their suit last year. Citing Proposition 209, their suit seeks to have declared unconstitutional various statutes that implement various state affirmative action programs, affecting everything from the selection of contractors to the hiring of state employees.

Wilson and Connerly are suing state officials, including Treasurer Matt Fong and Controller Kathleen Connell, as well as the Department of General Services, the State Personnel Board, and the lottery to force them to cease enforcing various state laws implementing affirmative action.

Additional lawsuits may have to be filed to strike down the affirmative action programs of other agencies which are not covered by Wilson and Connerly’s suit.

State law generally requires that 15% of the contracts in a state job be awarded to minority-owned business and 5% to women-owned enterprises. Laws also require ethnicity and gender to be considered in hiring.

“It will be business as usual,” said Anne Richards, spokeswoman for the Department of General Services, which oversees most of the $4 billion a year in state contracts. “We will continue to enforce affirmative action statutes until they’re declared unconstitutional.”

Even if Wilson and Connerly win their suit, the state Department of Transportation, which makes heavy use of outside contractors, would be bound by federal law to award 10% of its contracts to minority-owned firms because the state uses federal money for highway work. The federal requirement is being challenged in a federal suit in Colorado.

“We will do what the law requires. We’re just not sure what the law requires. We need some direction from above,” said Caltrans spokesman Robin Witt.

Local governments apparently are not bound by the 1978 constitutional provision.

Caso of the Pacific Legal Foundation said he expects most cities, counties, school districts and other local government entities will begin unraveling decades of affirmative action ordinances immediately.

However, Caso also expects some local officials will balk, adding: “There will be litigation to force them to comply.”

On Wednesday, local officials gave a variety of reasons why they won’t end their efforts, at least not for now. Some say the initiative’s language is so vague they are unsure which programs clash with the affirmative action ban. Others believe their affirmative action policies are protected because they were imposed by court orders.

The Los Angeles Unified School District’s extensive desegregation efforts, for example, flow from a 1981 state court order, noted Richard Mason, general counsel for the district.

In Los Angeles County’s affirmative action office, Dennis Tafoya said county officials “won’t be changing anything immediately. I think we want to be very sure about what we do here.”

In San Francisco, officials took on a more combative tone. Mayor Willie L. Brown. along with the mayors of Oakland and Berkeley, will join in a morning rally with the Rev. Jesse Jackson against Proposition 209. Jackson plans to lead a march across the Golden Gate Bridge today to protest the initiative.

The main San Francisco affirmative action program is an effort to include woman- and minority-owned businesses in city contracts ranging from food service at the jail to the remodeling of City Hall.

“San Francisco as a city is resisting through legal methods the imposition of Proposition 209,” said P.J. Johnston, a spokesman for Brown. “We feel that our equal opportunity programs are sanctioned through federal law, and we will not be changing the guard today or tomorrow or Monday.”

Morain reported from Sacramento, Boxall from Los Angeles. Times staff writers David Lesher in Los Angeles and Maria La Ganga in San Francisco contributed to this story.