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, including many in Orange County, say they already comply with the initiative’s requirements.

“It won’t have any impact on us whatsoever,” said Bart Bartlett, head of the county’s Equal Employment Opportunity Office. “We’ve never granted preferential treatment to those who are going through our selection or promotion process.”

State officials 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.

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.

In Orange County, where the measure received the support of 64% of the voters compared to 54% statewide, several officials interpreted it as merely banning quotas or other numeric systems to boost the number of minority employees. They said they never employed such practices and thus did not believe the measure would change the way they do business.

Said Allan L. Roeder, Costa Mesa city manager: “Quite frankly, we do not see any real direct change in the manner in which we do business.”

But when it comes to recruiting minority applicants, things get fuzzy.

Several officials said they naturally would draw minority candidates when they recruit for “special skills,” such as the ability to speak Spanish or Vietnamese. They said federal and state guidelines allow them to advertise for such abilities if they are directly related to the capacity to do the job in question.

“From a recruiting standpoint, we still are going to try to recruit minorities where possible, but we always try to select the best person possible” no matter their race or ethnicity, said Garden Grove City Manager George Tindall.

“If the public is culturally diverse and many speak different dialects and languages, we have to have employees who understand that culture and dialect,” he said.

At Cal State Fullerton, administrators have been meeting to gauge what impact, if any, the proposition would have on their various programs, said Mary Kay Tetreault, vice president for academic affairs.

“I would say the president is very clear that we will comply with the law, so that’s the bottom line,” she said. “But I don’t know how we will proceed institutionally.”

She said the campus may still acquire a diverse student body without active minority recruitment just by drawing from the ethnically varied area it serves. The entering freshman class, she said, was predominantly minority, with one-third Latino and another third Asian American.

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.

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