ORIGINA
MERIEM L. HUBBARD, No. 155057
E-mail: mlh@pacificlegal.org
RALPH W. KASARDA, No. 205286
E-mail: rwk@pacificlegal.org
JOSHUA P. THOMPSON, No. 250955
E-mail: jpt@pacificlegal.org
ADAM R. POMEROY, No. 272517
E-mail: arp@pacificlegal.org
Pacific Legal Foundation
930 G Street
Sacramento, California 95814
Telephone: (916)419-7111
Facsimile: (916)419-7747
LEGAL Pi;:CES5/;3
8 Attorneys for Plaintiffs and Petitioners
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SACRAMENTO
5814
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12 WARD CONNERLY, a citizen and taxpayer, and
Plaintiffs and Petitioners,
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16 STATE OF CALIFORNIA, ELAINE M. HOWLE,
FIRST AMENDED
VERIFIED COMPLAINT
FOR DECLARATORY AND
INJUNCTIVE R E L I E F
AND PETITION FOR
WRIT OF MANDATE
in her official capacity as the STATE AUDITOR OF
AC
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No. 34-2011-80000966-CU-WM-GDS
AMERICAN CIVIL RIGHTS FOUNDATION,
13 a nonprofit public benefit coiporation.
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17 CALIFORNIA, and the CALIFORNIA CITIZENS
REDISTRICTING COMMISSION,
18
Defendants and Respondents.
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Place:
Judge:
Department 31
The Hon. Michael Kenny
Plaintiffs and Petitioners Ward Connerly, a citizen and taxpayer residing in California, and
1
2 American Civil Rights Foundation, a nonprofit public benefit corporation whose members include
3 citizens and taxpayers residing in California (together Plaintiffs or Petitioners) bring this action
4 against Defendants and Respondents State of Califomia; Elaine M. Howie, in her official capacity
5 as State Auditor; and the Citizens Redistricting Commission (together Defendants or Respondents)
6 for declaratory and injunctive relief under Code of Civil Procedure sections 1060, 526, and 526a
7 and a writ of mandate under Code of Civil Procedure section 1085 for violating Article I ,
8 section 31, of the Califomia Constitution (Section 31 or Proposition 209).
9
INTRODUCTION
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This action challenges, on its face, Govermnent Code section 8252(g) as violating
11 Article I, section 31, of the California Constitution. In 1996, the people of California adopted
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12 Proposition 209, adding Section 31 to the state constitution. In adopting this historic initiative, the
13 people of Califomia mandated that race, sex, color, ethnicity, or national origin can no longer be
14 a factor in deciding who should and who should not receive the benefit of being appointed to state
15 boards and commissions. Nevertheless, Government Code section 8252(g) requires that race, sex,
16 color, etlinicity, or national origin be a factor in the selection process.
17
2.
Section 8252(g) is unconstitutional in two ways. First, the final six members of the
18 Citizens Redistricting Commission are selected after a consideration—by the fust eight members
19 ofthe Commission—of their race, ethnicity, and sex to ensure that the Commission reflects the
20 state's diversity. (For the sake of clarity, herein Plaintiffs use the term "sex" to include both the
21 terms "sex" and "gender;" the fomier being the operative word in Section 31 and the latter being
22 the word used by Government Code section 8252(g).) Second, the public employees of the
23 Applicant Review Panel, when reviewing applications to the Citizens Redistricting Commission,
24 must consider the race, etlinicity, and sex ofthe applicants so that the first eight members of the
25 Commission can meet their statutory duties in appointing the final six members so that the
26 composition of the Commission reflects the state's race, sex, and etlmic diversity.
27
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PARTIES
1
2
3.
Plaintiff and Petitioner Ward Connerly (Mr. Connerly) is a citizen and taxpayer of
3 the State of California. He has a beneficial interest in ensuring that the State, its agencies,
4 instrumentalities, and employees comply with the mandates and prohibitions set out in Section 31
5 and in preventing the illegal and wasteful expenditure of public resources in connection with the
6 enforcement of statutes that violate Section 31. Upon information and belief. Plaintiffs and
7 Petitioners allege that Defendants and Respondents utilize public resources, including public
8 monies, when they consider the race, ethnicity, and sex of applicants vvhen appointing members
9 to the Defendant Citizens Redistricting Commission in violation of Section 31. Mr. Connerly
10 resides within the State's boundaries and has paid real property taxes and income taxes to the State
11 of Califomia within one year ofthe comniencement of this action. At all times relevant to this
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12 action, Mr. Connerly has been a registered voter in the County of Sacramento and the State of
13 California and is eligible to vote in any election involving amendments to the California
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14 Constitution. Mr. Connerly was the Petitioner in Connerly v. State Pers. Bd.,92 Cal. App. 4th 16
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15 (2001), which held several Califomia statutes unconstitutional under Section 31, and Connerly v.
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16 State of California, No. 34-2010-80000412 (Sacramento County Super. Ct. filed Jan. 6, 2010),
17 which resulted in a writ of mandate ordering the Respondents to follow the mandates of Section 31
18 by ceasing enforcement of several California statutes.
19
4.
Plaintiff and Petitioner American Civil Rights Foundation (Foundation) is a
20 nonprofit, public benefit corporation headquartered in Sacrainento, California. It is dedicated to
21 eradicating practices of racial discrimination and preferences by government entities nationwide,
22 and to enforcing Section 3I's prohibition of racial, ethnic, and sex-based discrimination and
23 preferences in the operation of public education, public employment, and public contracting at the
24 State and local levels in California. The Foundation's members include individuals who are
25 citizens, residents, taxpayers, and propeity owners in the State of California. The Foundation's
26 members have paid taxes to the State of California and on real property located in California within
27 one year of the commencement ofthis action. The Foundation is authorized by its members to
28 bring litigation affecting the interests of citizens and taxpayers within the State of California. They
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1 have a beneficial interest in ensuring that the State, its agencies and instrumentalities, and its
2 employees comply with the mandates and prohibitions set out in Section 31, and in preventing the
3 illegal and wasteful expenditure of public resources by the State to comply with laws that violate
4 Section 31. On information and belief, Plaintiffs and Petitioners allege that Defendants and
5 Respondents are violating Section 31 by utilizing public resources, including public monies, when
6 they consider the race, ethnicity, and sex of applicants when appointing members to the Defendant
7 Citizens Redistricting Commission. The Foundation was petitioner in Ainerican Civil Rights
8 Foundation v. Los Angeles Unified Sch. Dist., 169 Cal. App. 4th 436 (2008), in which the appellate
9 court found the school district's desegregation prograni was exempted from Section 3I's
10 prohibitions on the use of race under an existing court order.
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5.
Defendant and Respondent State of California is the government entity responsible
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12 for enforcement of the Constitution and laws of the State. State employees are required under
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13 Government Code section 8252 to participate in an application process which distributes benefits
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14 and burdens on the basis or race, ethnicity, and sex. Yet, under Section 31, the State has a
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15 mandatoiy duty to prohibit discrimination and preferential treatment on the basis of race, ethnicity,
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16 or sex in the operation of public employment, public education, and public contracting, by all state
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17 departments, agencies, and instrumentalities, including boards and commissions and their
18 employees.
19
6.
Defendant and Respondent Elaine M. Howie is sued in her official capacity as the
20 State Auditor. State Auditor Howie is responsible for overseeing the Citizens Redistricting
21 Commission application and selection process, including the creation of the initial applicant pool,
22 selecting the public employees who comprise the Applicant Review Panel, and selecting the first
23 eight members of the Commission. Gov't Code § 8252. In performing these duties. State Auditor
24 Howie has a mandatoiy duty to comply with the California Constitution, including Section 31, to
25 prohibit discrimination and preferential treatment on the basis of race, ethnicity, or sex in the
26 operation of public employment and public contracting. She has a duty to ensure that Section 31
27 is followed during the selection process of Commission members. She has a further duty to ensure
28 that public employees do not violate Section 31.
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1
7.
Defendant and Respondent Citizens Redistricting Commission (Commission) is a
2 political subdivision or governmental instrumentality ofthe State of Califomia and has a mandatory
3 duty to comply with Section 31. The Commission is responsible for determining the boundaries
4 forthe Assembly, Senate, Board of Equalization, and congressional districts within the State. Cal.
5 Const, art. XXI, § 1. Govemment Code section 8252(g) requires the Commission's first eight
6 members to discriminate against some and grant preferences to others based on race, ethnicity, and
7 sex when selecting the Commission's final six members. Yet, in performing its duties, the
8 Commissioners must comply with Section 31; they cannot engage in discrimination or preferential
9 treatment on the basis of race, ethnicity, or sex in the operation of public employment or public
10 contracting.
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VENUE
8.
Venue is proper in this Court pursuant to Code of Civil Procedure sections 393(b)
13 and 395(a) because Defendants and Respondents reside and execute their public offices and duties
14 in the County of Sacramento.
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ALLEGATIONS
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16
Article I, Section 31, of the California Constitution
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On Noveinber 5, 1996, the voters of Califomia adopted Proposition 209, adding
18 Article I , section 31, to the Califomia Constitution. In adopting Section 31, the voters issued a
19 clear mandate prohibiting the State from discriminating against or granting preferences to
20 individuals or groups on the basis of race, ethnicity, or sex in the operation of public employment
21 or public contracts. The operative provision of Section 31 provides: "The state shall not
22 discriminate against, or grant preferential treatment to, any individual or group on the basis of race,
23 sex, color, ethnicity, or national origin in the operation of public employment, public education,
24 or public contracting." Cal. Const, art. I , § 31(a).
25
10.
Section 31 extends not only to the State itself, but also to all political subdivisions
26 and instrumentalities of state govermnent, including Defendant and Respondent Citizens
27 Redistricting Commission. Section 31 (f) defines the "State" as follows: "'State' shall include, but
28 not necessarily be limited to, the state itself, any city, county, city and county, public university
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1 system, including the University of Califomia, community college district, school district, special
2 district, or any other political subdivision or governmental instrumentality of or within the state."
3 Cal. Const, art. I, §31(f).
4
11.
Public employment or public contracting schemes that discriminate against or give
5 preferential treatment to applicants on the basis of race, etlinicity, or sex in the operation of
6 public employment or public contracting violate Section 31. Hi-Voltage Wire Works, Inc. v.
7 City of San Jo.se, 24 Cal. 4th 537, 564 (2000). "Rather than classifying individuals by race . . .
8 Proposition 209 prohibits the State from classifying individuals by race." Id. at 561 (citation
9 omitted).
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Section 31 requires the entire screening process of applicants to the California
11 Redistricting Commission to be conducted in a neutral manner without consideration of an
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12 applicant's race, sex, or etlinicity. Section 31 prohibits the state from requiring that public
13 employees, in the operation of their duties as public employees, consider an applicant's race, sex,
14 or ethnicity.
15
Government Code § 8252
16
13.
On November 4,2008, the voters ofthe State ofCalifomia approved Proposition 11.
17
14.
Proposition 11 transfeired power over redrawing State Assembly, Senate, and Board
18 of Equalization districts to a newly created Citizens Redistricting Cominission. Proposition 11
19 amended Article XXI of the State constitution to transfer the redistricting power. It also added
20 Govemment Code sections 8251-8252.5. Proposition 20, adopted in Noveinber, 2010, gave the
21 Commission authority to re-draw congressional districts as well.
22
15.
Government Code section 8252 sets out the process for selecting members to the
23 Commission. The State Auditor creates a "diverse and qualified applicant pool" by initiating an
24 application process and removing any ineligible applicants. Gov't Code § 8252(b). The State
25 Auditor then randomly selects tliree auditors, chosen "from a pool consisting of all auditors
26 employed by the state and licensed by the Califomia Board of Accountancy," to form an Applicant
27 Review Panel. The public employees of the Applicant Review Panel review eligible applicants and
28 select 60 "ofthe most qualified applicants." Gov't Code § 8252(d). Next, state legislative leaders
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1 have an opportunity to further reduce the applicant pool by striking a certain number of applicants.
2 Gov't Code § 8252(e). Thereafter the State Auditor randomly selects the first eight Commission
3 members from the remaining applicant pool. Gov't Code § 8252(f). These eight Commission
4 members then select the final six Commission members. Gov't Code § 8252(g).
5
Government Code § 8252(g) and the Final Appointments to the Commission
6
16.
During the selection of the final six Commission members, Govermnent Code
7 section 8252(g) requires the first eight Commission members to discriminate against some
8 applicants and grant preferential treatment to other applicants on the basis of race, ethnicity, and
9 sex. Section 8252(g) provides in pertinent part:
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No later than December 31 in 2010, and in each year ending in the number zero
thereafter, the eight commissioners shall review the remaining names in the pool
of applicants and appoint six applicants to the commission as follows: . . . . The
six appointees shall be chosen to ensure the commission reflects this state's
diversity, including, but not limited to, racial, ethnic, geographic, and gender
diversity. However, it is not mtended that fonnulas or specific ratios be applied for
this purpose.
14 Gov't Code § 8252(g) (emphasis added).
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17.
Government Code section 8252(g) violates Section 31 to the extent that
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17 basis of race, ethnicity, or sex in the operation of public employment or public contracting when
18 appointing six members to the Commission.
19
18.
Citizens Redistricting Commission members are public employees. Commission
20 members are chosen by a process initiated and overseen by the State of California and the State
21 Auditor, with input from the leadership of the State Assembly and Senate. Gov't Code § 8252.
22 Commission members are subject to removal by the Govemor, with concun-ence of the Senate.
23 Gov't Code § 8252.5(a). Commission members are also subject to prosecution by the Attorney
24 General for "substantial neglect of duty or gross misconduct in office." Id. Commission members
25 are compensated by the state and eligible for reimbursement of personal expenses connected with
26 their duties as members of the Commission. Gov't Code § 8253.5. Alternatively, the Commission
27 members are public contractors appointed by the Defendants and Respondents based upon a
28 selection process using race, ethnicity, and sex in violation of Section 31.
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Government Code § 8252(g) and the Applicant Review Panel
1
2
19.
State employees who have been selected to be on the Applicant Revievv Panel are
3 required to perform their duties in a way that violates Section 31. In order for the eight
4 Commissioners to perform their statutory duties under Section 8252(g), the public employees on
5 the Applicant Review Panel must create a pool of 60 "of the most qualified applicants." Gov't
6 Code § 8252(d). Plaintiffs are informed and believe, and therefore allege, that this requires the
7 public employees to consider the qualifications of applicants, including their race, sex, and
8 etlinicity, in order to provide the eight Commissioners with sufficiently diverse candidates to meet
9 the statutory requirements of "ensur[ing] the commission reflects this state's diversity, including,
10 but not limited to, racial, ethnic, geographic, and gender diversity." Gov't Code § 8252(g).
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Government Code section 8252(g) violates Section 31 to the extent that
12 Section 8252(g) requires, authorizes, or encourages public employees to participate in a process
13 that considers race, ethnicity, or sex as a factor in appointing six members to the Coinmission.
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INJUNCTIVE R E L I E F ALLEGATIONS
15
(Enforcement of Article I, Section 31, of the California Constitution)
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21.
Plaintiffs and Petitioners incorporate by reference and reallege each and every
17 allegation set forth in this complaint.
18
22.
Plaintiffs and Petitioners contend that, unless enjoined by this Court, Defendants
19 and Respondents will cause great and iiTeparable injuiy to Plaintiff Mr. Connerly and members of
20 Plaintiff Foundation, who are taxpaying residents of California, in that:
21
(a)
Defendants and Respondents will expend public monies and public
22
resources to implement and administer Govemment Code section 8252(g), which requires
23
eight members of the Commission to grant preferences as well as discriminate on the basis
24
of race, etlinicity, and sex in the selection of six members to the Commission ; and
25
(b)
Defendants and Respondents will expend public monies and public
26
resources to implement and administer Government Code section 8252, in such a manner
27
as to require public employees on the Applicant Review Panel to grant preferences as well
28
as discriminate against individuals on the basis of their race, ethnicity, and sex when
1st Amend Veri Compl for D&l Relief & Pet for Writ
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1
determining the 60 most qualified applicants to be included in the pool of recommended
2
applicants.
3 Such continued actions by Defendants and Respondents are unlawful and contrary to the
4 obligations of Defendants' and Respondents' respective public offices and the trusts and duties
5 arising therefrom.
6
23.
Plaintiffs and Petitioners seek relief under Code of Civil Procedure sections 526 and
7 526a. Plaintiffs and Petitioners have no adequate remedy at law, and pecuniaiy compensation
8 would not provide adequate relief On infomiation and belief, Plaintiffs and Petitioners alleged
9 that, without an injunction restraining the continued enforceinent and administration of the
10 offending portions of Government Code section 8252(g), Defendants and Respondents will
11 continue to violate Section 31 by administering, implementing, maintaining, and enforcing
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13 treatment to applicants, seeking to be chosen as a commissioner, in the operation of public
14 employment or public contracting.
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12 Govemment Code section 8252(g) in a manner that requires discrimination against and preferential
15
FIRST CAUSE OF ACTION
16
RELATING TO GOVERNMENT CODE SECTION 8252(g)
17
Declaratory Relief for Violation of Article I, Section 31, of the California Constitution
18
(Code of Civ. Proc. § 1060)
19
(Against All Defendants)
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24.
Plaintiffs incorporate by reference and reallege each and every allegation set forth
21 in this complaint.
22
25.
Defendants have a duty to comply with Section 31, which prohibits discrimination
23 against or preferential treatment to any individual or group on the basis of race, sex, color,
24 ethnicity, or national origin in the operation of public employment or public contracting.
25
26.
Notwithstanding this duty, Defendants are required to follov/ and enforce
26 Govemment Code section 8252(g), which uses race, ethnicity, and sex to select members to the
27 Commission.
28
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1
27.
An actual and justiciable controversy exists between the parties concerning the
2 constitutionality of Govemment Code section 8252(g). Plaintiffs contend that Section 8252(g)
3 violates Section 31 to the extent that it mandates racial, ethnic, or sex preferences or discrimination
4 in the operation of public employment or public contracting.
5
28.
Plaintiffs are infonned and believe, and therefore allege, that Defendants dispute
6 that Section 8252(g) violates Section 31 to the extent it mandates, encourages, or authorizes
7 preferential treatment to or discrimination against applicants based on race, etlinicity, or sex in the
8 operation of public employment and public contracting.
9
29.
A judicial determination of rights and responsibilities arising from this actual
10 controversy is necessary and appropriate at this time.
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WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
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SECOND CAUSE OF ACTION
13
RELATING TO PUBLIC EMPLOYEES
OF THE APPLICANT REVIEW PANEL
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Declaratory Relief for Violation of Article I, Section 31, ofthe California Constitution
(Code of Civ. Proc. § 1060)
16
(Against All Defendants)
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30.
Plaintiffs incorporate by reference and reallege each and evety allegation set forth
19 in this complaint.
20
31.
Notwithstanding Defendants' duty under Section 31, Defendants are required to
21 follow and enforce Government Code section 8252, which requires public employees on the
22 Applicant Review Panel to grant preferences to and discriminate against individuals on the basis
23 of their race, ethnicity, and sex when detemiining the 60 most qualified applicants to be included
24 in the pool.
25
32.
An actual and justiciable controversy exists between the parties concerning the
26 constitutionality of Govermnent Code section 8252(g). Plaintiffs are informed and believe, and
27 therefore contend that Section 8252(g) violates Section 31 to the extent that it requires, authorizes,
28 or encourages public employees, of the Applicant Review Panel, to grant preferential treatment to
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1 and discriminate against applicants to the Citizens Redistricting Commission on the basis of race,
2 ethnicity, or sex.
3
33.
Plaintiffs are informed and believe, and therefore allege, that Defendants dispute
4 that Section 8252 violates Section 31 to the extent it mandates, encourages, or authorizes public
5 employees to grant preferential treatment to or discriminate against any applicant based on race,
6 ethnicity, or sex in the operation of public employment.
7
34.
A judicial determination of rights and responsibilities arising from this actual
8 controversy is necessaiy and appropriate at this time.
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THIRD CAUSE OF ACTION
11
WRIT OF MANDATE RELATING TO GOVERNMENT CODE
SECTION 8252(g) TO COMPEL ALL RESPONDENTS
TO PERFORM THEIR DUTIES UNDER ARTICLE I,
SECTION 31, OF THE CALIFORNIA CONSTITUTION
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(Mandamus—Code of Civ. Proc. § 1085)
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WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth.
(Against All Respondents)
35.
Petitioners incorporate by reference and reallege each and eveiy allegation set forth
17 in this petition.
18
36.
California Code of Civil Procedure section 1085 pemiits this Court to issue a writ
19 of mandate to compel actions required of the State of California, state boards or commissions, and
20 state officers and employees.
21
37.
Section 31 prohibits the State and its political subdivisions or governmental
22 instrumentalities from granting preferential treatment to, or discriminating against, any group or
23 individual on the basis of race, color, ethnicity, sex, or national origin in the operation of public
24 employment and public contracting. Cal. Const, art. I, § 31(a), (f). Section 31 prohibits the State
25 and all its political subdivisions or govemniental instrumentalities from classifying applicants for
26 public benefits, including public employment or public contracting, by race. Hi-Voltage, 24 Cal.
27 4th at 561 (citation omitted) ("Rather than classifying individuals by race . . . Proposition 209
28 prohibits the State from classifying individuals by race.").
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38.
Respondent Commission is a political subdivision or an instrumentality ofthe state
2 government. Cal. Const, art. I, § 31(f); Cal. Const, art. XXI, § 1; Gov't Code § 8251, etseq.
3
39.
Respondents are under a clear and present duty to comply with Section 31, which
4 prohibits discrimination against or preferential treatment to any individual or group on the basis
5 of race, sex, color, ethnicity, or national origin in the operation of public employment or public
6 contracting.
7
40.
Petitioners have a clear, present, legal right to enforce Respondents' performance
8 of their duties under Section 31. Furthemiore, Petitioners have a beneficial interest in assuring that
9 the most qualified applicants be appointed to the Commission, free from any government
10 discrimination or preferential treatment based upon race, sex, color, etlinicity, or national origin
11 in the operation of public employment or public contracting.
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Govermnent Code section 8252(g) requires the first eight Commission members to
13 use race, ethnicity, and sex in selecting the final six members to the Commission. This requirement
14 violates Section 31 because it classifies and treats individuals differently on the basis of race,
15 etlinicity, and sex in the operation of public employment or public contracting.
16
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42.
With the adoption of Govemment Code section 8252(g), Respondents are prohibited
17 from performing their legal duties as required by Section 31, they exceed their lawful powers and
18 authority, and abuse their discretion in their use of race, ethnicit}', or sex in the selection process
19 of six Commission members.
20
43.
To the extent Government Code section 8252(g) subjects individuals or groups
21 to unequal and disadvantageous treatment on the basis of race, ethnicity, or sex when competing
22 for public benefits, including public employment or public coiitractmg, it violates Section 31.
23 Section 8252(g) requires the first eight Commission members to discriminate against potential
24 Commission members on the basis of race, etlinicity, and sex. An applicant who does not make
25 the Commission "diverse" is punished by having his or her application rejected because of race,
26 ethnicity, or sex.
27
44.
Respondents' continued enforcement of Govemment Code section 8252(g), which
28 mandates racial, ethnic, and sex-based preferences in the operation of public employment or public
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1 contracting, constitutes a prejudicial abuse of discretion and is beyond Respondents' lawful powers
2 and authority.
3
45.
Issuance of a writ of mandate compelling Respondents to perform the duties
4 resulting fi'oni their respective offices, trusts, and stations, in a nondiscriminatoty and
5 nonpreferential manner in ftill compliance with Section 31, in the selection of Commission
6 members under Govemment Code section 8252(g), is required. There exists no plain, speedy, and
7 adequate remedy in the ordinary course of law to protect Petitioners' rights and interests, and it
8 would be extremely difficult to determine how much compensation would afford adequate relief
9
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FOURTH CAUSE OF ACTION
11
13
WRIT OF MANDATE RELATING TO
THE PUBLIC EMPLOYEES OF THE APPLICANT
REVIEW PANEL TO COMPEL ALL RESPONDENTS
TO PERFORM THEIR DUTIES UNDER ARTICLE I,
SECTION 31, OF THE CALIFORNIA CONSTITUTION
14
(Mandamus—Code of Civ. Proc. § 1085)
15
(Against All Respondents)
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WHEREFORE, Petitioners pray for judginent against Respondents as hereinafter set forth.
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46.
Petitioners incoiporate by reference and reallege each and evety allegation set forth
17 in this petition.
18
47.
The Applicant Review Panel is composed of public employees, employed by
19 Respondent State of Califomia and supervised by Respondent State Auditor Howie. Gov't Code
20 § 8252.
21
48.
Government Code section 8252 requires public employees on the Applicant Review
22 Panel to perform their duties in a way that violates Section 31. Plaintiffs are informed and belief,
23 and therefore allege that the public employees of the Applicant Review Panel must take into
24 consideration the race, etlinicity, and sex of the applicants when reviewing applications to the
25 Commission. This consideration ofthe race, ethnicity, and sex of applicants is necessaiy to enure
26 that the first eight members ofthe Cominission can meet their statutoiy requirement to appoint the
27 final six members so that the composition of the Commission reflects the state's race, ethnic, and
28 sex diversity.
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1
49.
An applicant who will not further "diversity" because he or she is the wrong race,
2 etlinicity or sex is punished by having his or her application rejected as not being sufficiently
3 qualified in violation of Section 31. An applicant who will further "diversity" because he or she
4 is the favored race, ethnicity, or sex is granted preferential treatment in the appUcation selection
5 process in violation of Section 31.
6
50.
Respondents' continued enforcement of Government Code section 8252, which
7 mandates racial, ethnic, and sex-based preferences or discrimination in the operation of public
8 employment, constitutes a prejudicial abuse of discretion and is beyond Respondents' lawful
9 powers and authority.
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12 and stations in a nondiscriminatoiy and nonpreferential manner in full compliance with Section 31,
13 when reviewing applications to the Citizens Redistricting Commission pursuant to Government
14 Code section 8252, is required. There exists no plain, speedy, and adequate remedy in the ordinaty
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11 on the Applicant Review Panel to perform their duties resulting from their respective offices, trusts,
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15 course oflaw that will protect Petitioners' rights and interests, and it would be extremely difficult
16 to determine how much compensation would afford adequate relief
17
WHEREFORE, Petitioners pray for judgnient against Respondents as hereinafter set forth.
18
19
PRAYER FOR R E L I E F
1.
For a declaration that Govemment Code section 8252(g) is unconstitutional, invalid,
20 and unenforceable under Article I, section 31(a), of the California Constitution, to the extent that
21 it discriminates against or grants preferences on the basis of race, sex, color, ethnicity, or national
22 origin in the operation of public employment or public contracting;
23
2.
For a declaration that Government Code section 8252 is unconstitutional, invalid,
24 and unenforceable under Article I, section 31(a), of the Califomia Constitution, to the extent that
25 it requires, authorizes, or encourages public employees on the Applicant Review Panel to grant
26 preferential treatment to or discriminate against applicants on the basis of race, ethnicity, or sex
27 when selecting the pool of most qualified applicants to be considered by the Citizens Redistricting
28 Commission;
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3.
1
For a permanent prohibitory injunction enjoining Defendants and Respondents, and
2 each Defendant and Respondent individually, from enforcing or attempting to enforce Government
3 Code section 8252(g), to the extent that it discriminates against or grants preferential treatment to
4 any individual or group on the basis of race, sex, color, etlinicity, or national origin in the operation
5 of public employment or public contracting now and in the future;
6
4.
For this Court to issue a writ of mandate and/or prohibition compelling Respondents
7 to perform their duties under Article I, section 31, of the California Constitution by commanding
8 the Respondents, their agents, employees, officers, and representatives to stop enforcing, or
9 attempting to enforce, Govemment Code section 8252(g) to the extent that it mandates the use of
10 racial, ethnic, or sex-based discrimination or preferential treatment in the operation of public
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11 employment or public contracting, now and in the future;
For this Court to issue a writ of mandate and/or proliibition compelling Respondents
13 to perform their duties under Ai-ticle I, section 31, of the Califomia Constitution by commanding
14 the Respondents, their agents, employees, officers, and representatives to stop enforcing, or
15 attempting to enforce. Government Code section 8252 to the extent that it requires, authorizes, or
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16 encourages public employees on the Applicant Review Panel to grant preferential treatment or
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17 discriminate on the basis of race, ethnicity, or sex, when considering applications to the Citizens
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18 Redistricting Commission, now and in the future;
19
6.
That the Court sever and find invalid, unenforceable, and unconstitutional that
20 portion of Government Code section 8252(g), which requires the State of California, its agencies,
21 departments, officers, public employees, and political subdivisions or govermnental
22 instrumentalities to discrmiinate against or grant preferential treatment on the basis of race,
23 ethnicity, or sex in the operation of public employment or public contracting in violation of
24 Article I, section 31, of the California Constitution;
25
7.
26
///
27
///
28
///
For costs of suit;
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1
8.
For attomeys' fees; and
2
9.
For such other and ftirther relief as the Court may deem proper.
3
DATED: March 15, 2012.
4
Respectfully submitted,
5
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON
ADAM R. POMEROY
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By.
ADAM R. POMEROY
Attomeys for Plaintiffs and Petitioners
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Ist Amend Veri Compl for D&I Reiief & Pet for Writ
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AMERICAN CIVIL RIGHTS FOUNDATION VERIFICATION
2
1, Diane Schachterle, hereby declare as follows:
3
1 am the authorized representative of American Civil Rights Foundation (Foundation),
4 Plaintiff and Petitioner in this matter. 1 have the authority to act on behalf of the Foundation and
5 to make this verification for, and on behalf of, the Foundation. I have read the FIRST AlVIENDED
6 , VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION
7 FOR WRIT OF MANDATE and know its contents. The facts alleged in this matter are within my
8 own personal knowledge, and 1 know these facts to be tme, except for matters stated on inforniation
9 and belief, and 1 believe them to be tme.
10
11 is true and correct and that this verification was executed this \H day of March, 2012, in
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I declare under penalty of perjury under the laws ofthe State of Califomia that the foregoing
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12 Sacraniento, California.
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DIANE SCHACHTERLE
American Civil Rights Foundation
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1
DECLARATION OF SERVICE BY MAIL
2
I, Barbara A. Siebert, declare as follows:
3
I am a resident of the State of California, residing or employed in Sacraniento, California.
4 I am over the age of 18 years and am not a paity to the above-entitled action. My business address
5 is 930 G Street, Sacramento, Califomia 95814.
6
On March 15, 2012, true copies of FIRST AMENDED VERIFIED COMPLAINT FOR
7 DECLARATORY AND INJUNCTFVE RELIEF AND PETITION FOR WRIT OF MANDATE
8 were placed in envelopes addressed to:
9
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KAMALA D. HARRIS
TAMAR PACHTER
DANIEL J. POWELL
Office of the Attorney General
455 Golden Gate Avenue
Suite 11000
San Francisco, CA 94102-7004
Counsel for Defendants State of California
and the Citizens Redistricting Cominission
MARGARET CAREW TOLEDO
Meiinenieier, Glassnian & Stroud LLP
980 Ninth Street
Suite 1700
Sacramento, CA 95814
Counsel for Defendant Elaine M. Howie,
State Auditor of California
18 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox
19 regularly maintained by the United States Postal Service in Sacramento, California.
20
I declare under penalty of perjury that the foregoing is true and correct and that this
21 declaration was executed this 15th day of March, 2012, at Sacrainento, Califomia.
22
23
24
BARBARA A. SIEBERT
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1st Amend Veri Compl for D&l Relief & Pet for Writ
of Mand - No. 34-2011 -80000966-CU-WM-GDS
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