ORIQINA
1 MERIEM L. HUBBARD, No. 155057
E-mail: mlh(^pacificlegal.org
2 RALPH W. KASARDA, No. 205286
E-mail: rwk(^pacificlegal.org
3 JOSHUA P. THOMPSON, No. 250955
E-mail: jpt(§pacificlegal.org
4 ADAM R. POMEROY, No. 272517
E-mail: arp(^pacificlegal.org
5 Pacific Legal Foundation
930 G Street
6 Sacraniento, Califomia 95814
Telephone: (916)419-7111
7 Facsimile: (916)419-7747
8 Attorneys for Plaintiffs and Petitioners
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COUNTY OF SACRAMENTO
12 WARD CONNERLY, a citizen and taxpayer, and
No. 34-2011-80000966-CU-WM-GDS
AMERICAN CIVIL RIGHTS FOUNDATION,
13 a nonprofit public benefit corporation.
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SUPERIOR COURT OF CALIFORNIA
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16 STATE OF CALIFORNIA, ELAINE M. HOWLE,
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in her official capacity as the STATE AUDITOR OF
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17 CALIFORNIA, and the CALIFORNIA CITIZENS
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PLAINTIFFS'
OPPOSITION
TO DEMURRER
BY STATE AUDITOR
Plaintiffs and Petifioners,
REDISTRICTING COMMISSION,
Defendants and Respondents.
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Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS
Place:
Judge:
Departnient 31
The Hon. Michael Kenny
DATE: ^ -XDEPT: 3^ TIME: ^^r^
1
2
INTRODUCTION AND SUMMARY OF ARGUMENT
Plaintiffs Ward Coimerly and Anierican Civil Rights Foundation (Plaintiffs) hereby oppose
3 the demun-er brought by Defendant State Auditor Howie (Auditor). Defendant Auditor and
4 Defendants State of California and the Califomia Redistricting Commission (together. State) have
5 each joined in the arguments of the others demurrer. See State's Deinurrer at 5 n.2; Auditor's
6 Demun-er at 5:10-13. Plaintiffs likewise incoiporate both of their responsive pleadings against all
7 Defendants. Therefore, in this opposition. Plaintiffs address only those additional arguments raised
8 in the Auditor's demurrer.
9
Plaintiffs' First Amended Complaint alleges several violafions of Article I, Section 31, of
10 the Califomia Constitution (Section 31 or Proposition 209), based on Defendant's implementation
11 of a process for selecting members of the Redistricting Coimnission that discriminates on the basis
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12 of race, ethnicity, and sex in the operation of public employment.' First Aniended Complaint
13 (FAC) at 2, 15-20.
14
Plaintiffs have alleged facts sufficient to state several causes of action against Defendant
15 for violations of Section 31. The State Defendants admit to the discriminatory aspects of their
16 program. State's Deinurrer at 12:20-21, and the Auditor does not dispute the State's
17 characterization ofthe program. Still, the Auditor urges this Courtto carve out ajudicial exception
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18 to Section 31 for public officers and public einployees on the Applicant Review Panel. See
19 Auditor's Demuner at 5:10-8:16. The Court should decline to do so.
20
Section 31 covers all state actors and covers all actions taken "in the operation of public
21 employment." Cal. Const, art. I, § 31 (a). It "categorically prohibits discrimination and preferential
22 treatment." Hi- Voltage Wire Works, Inc. v. City ofSan Jose, 24 Cal. 4th 537,567 (2000). It is well
23 established that public officers are engaged in public employment. Kirk v. Flournoy, 36 Cal. App.
24 3d 553, 557 (1974); Leymel v. Johnson, 105 Cal. App. 694, 701 (1930). Both public officers and
25 public einployees are involved in "public employment." See Plaintiffs' Opposition to State's
26
27 ' For the sake of brevity. Plaintiffs will hereafter use the term "race" to include race, ethnicity, and
sex, as Section 31 prohibits the Defendants from discriminating, or granting preferences, based on
28 all of these factors. Cal. Const, art. I, § 31(a).
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011 -80000966-CU-WM-GDS
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1 Demun-er at 2:21-7:9. Any work done by state einployees to separate, classify, and discriminate
2 against individuals on the basis of race is both unconstitufional under Section 31, and an illegal use
3 of public resources.
4
Plaintiffs' Second and Fourth causes of action allege valid facial challenges to Government
5 Code section 8252(g). The plain language of the statute requires diversity among appointees to the
6 commission. The Applicant Review Panel is involved in a process that achieves diversity by
7 discriminafing on the basis of race in violation ofSection 31.
8
Lastly, Defendant attempts to manufacture a conflict between Section 31 and Article XXI,
9 Section 2(c)(1), of the state constitufion. Auditor's Demuner at 9:26-10:24. In fact, the two
10 provisions are easily reconciled by adopting the plain meaning of the word "diversity" in
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LEGAL STANDARD ON DEMURRER
Plaintiffs addressed the proper standard on demurrer in their Opposition to State's Demurrer
14 at 2:5-15. As mentioned. Plaintiffs incorporate by reference that Opposition in its entirety and for
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11 Article XXI, Section 2(c)(1), to effectuate the voters' intent when adopting Proposition 209.
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15 the sake of brevity do not repeat the standard here.
16
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SECTION 31'S PROHIBITION ON RACIAL DISCRIMINATION
IN PUBLIC EMPLOYMENT COVERS THE CHALLENGED
ACTIONS OF THE REDISTRICTING COMMISSION
18
19
Public Officers are, by definition, involved in public employment. It is hornbook Califomia
20 law, and there is simply no case that states otherwise. See, e.g., 52 Cal. Jur. 3d Public Officers and
21 Employees § 11 (2012); 63C Am. Jur. 2d Public Officers and Employees § 2 (2012); Kirk, 36 Cal.
22 App. 3d at 557 (public officers are engaged in public einployment); Leymel, 105 Cal. App. at 701
23 (same); Curtin v. State, 61 Cal. App. 377 (1923) (same); Mono County v. Indus. Accident Comtn 'n,
24 175 Cal. 752, 755 (1917) (same); Patton v. Bd of Health of City & County of San Francisco,
25 127 Cal. 388, 393 (1899) (same). The Auditor's argument that state officers are not employees is
26 in-elevant, since public officers are, like public employees, also involved in public employment.
27 Plaintifts have addressed this claim in the opposition to the State's Demun-er, and need not repeat
28 those arguments here. Plaintiffs' Opposition to State's Demurrer at 2:21-4:11.
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS
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1
The remainder of the Auditor's arguinent falls once this error is highlighted. The Auditor
2 precedes from the premise that officers are not engaged in public employment, and then argues that
3 Proposition 209 must be inteipreted in accordance with its own tenns. Auditor's Demurrer
4 at 7:11-8:6. But, the legal and everyday understanding of "public employmenf has always
5 included public officers. Neither the State nor the Auditor has found any authority that says
6 otherwise.
7
Similarly, the state appellate decisions applying Section 31 offer the Auditor no help. See
8 Auditor's Demun-er at 6:22-7:10. Each decision cited by the Auditor demonstrates that Califomia
9 courts inteipret Section 31 strictly, and every race-based preference that the courts were presented
10 has fallen. See, e.g., Coral Constr., Inc. v. City & County ofSan Francisco, 50 Cal. 4th 315 (2010)
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11 (striking down as unconstitutional under Section 31 San Francisco's race-based contracting
12 progranis); Connerly v. State Pers. Bd., 92 Cal. App. 4th 16 (2001) (various state contracting and
13 employment statutes held unconstitutional under Section 31); Kidd v. State, 62 Cal. App. 4th 386
14 (1998) (holding supplemental certificafion program unconsfitufional under Section 31). Ofcourse,
15 that list is longer than the Auditor provided; Section 31, as interpreted by all California courts
16 provides no excuse for race-based preferential treatnient.
See, e.g., C&C Constr., Inc. v.
17 Sacramento Mun. Util. DisL, 122 Cal. App. 4th 284 (2004) (race-based contracting program
18 unconstitutional under Section 31); Crawford v. Huntington Beach Union High Sch. Dist,9^ Cal.
19 App. 4th 1275 (2002) (school district's race-based student balancing violated Section 31);
20 Hi- Voltage, 24 Cal. 4th at 562 (race-based contracting program unconsfitufional under Section 31).
21
The appellate decisions interpreting Section 31 all point to the same conclusion: where any
22 "political subdivision or govemmental instrumentality of or witliin the State"" discriminates or
23 grants preferential treatment on the basis of race, the courts have held the practice unconstitutional.
24 It is of no moment that the appellate decisions do not include e.xpress language invalidating the
25 actions of state ofTicers—no state officer specific statute has, heretofore, so blatantly attempted to
26
^ This language is quoted directly from Section 31. Cal. Const, art. I , § 31(f). Like the State
27 Demuner, the Auditor provides no defense as to why the Redistricting Commission is not a
govenmiental instrumentality of the State. See Plaintiffs' Opposition to State's Demun-er
28 at 5:16-7:9.
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS
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1 flout the constitutional requirements of Section 31.-' It is the Auditor, like the State, who is tiying
2 to carve out an exception to Section 31 where none previously existed. But, where the voters
3 intended Section 31 not to apply, they did so expressly. See Plaintiffs' Opposition to State's
4 Demurrer at 6:14-21.
5
The Auditor also claims that state employees are free to spend public time, inoney, and
6 resources separating applicants to the Redistricting Commission on the basis of race. Auditor's
7 Demun-er at 8:7-16. That is not true. Plaintiffs are bringing a taxpayer and citizen suit action
8 against the Auditor's illegal use of public resources. In assessing whether an alleged expenditure
9 of public funds is sufficient to allege a constitutional violation, it is "immaterial" that the aniount
10 of the allegedly illegal expenditure is "small." Wirin v. Parker, 48 Cal. 2d 890,894 (1957); accord
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12 additional expenditure of funds; instead, it is sufficient that paid einployees of a public entity have
13 expended their time in performing allegedly illegal acts. Citizens for Uniform Laws v. County of
14 Contra Costa, 233 Cal App. 3d 1468, 1472-73 (1991). Put simply, any work done by state
15 employees to separate, classify, and discriminate against individuals on the basis of race is
16 unconstitutional under Section 31.
17
Like the State, the Auditor's vision of Section 31 would pennit untold instances of
18 unconstitutional discrimination to go unchecked throughout Califomia govemment. The Governor
19 could appoint judges to fill judicial vacancies pursuant to race-based criteria. See Cal. Const,
20 art. VI, § 16 (authorizing the Govemor to appointjudges to fill judicial vacancies). The Califomia
21 Coastal Commission could appoint its executive director based solely on race-conscious diversity
22 goals. See Pub. Res. Code § 30335 (authorizing the commission to appoint an executive director).
23 Or, a school board could hire and fire a Superintendent based on the individual's skin color.
24 According to the Auditor, each of these (and thousands of other untold) instances of discrimination
25 are simply not implicated by Section 31. This is clearly contrary to the language of Section 31 and
26 the intent ofthe voters when they enacted it. The Auditor's argument that Section 31 's prohibition
27
^ However, it should be noted that in nearly every published decision involving Section 31, public
28 officers were paity to the lawsuits. Plaintiffs' Opposition to State's Deinurrer at 6:22-7:3.
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011 -80000966-CU-WM-GDS
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1 on discriminatory treatment in public employment does not reach the race-based actions of public
2 officials is meritless. The demuiTer should be ovenuled.
3
II
4
THE FIRST AMENDED COMPLAINT
ALLEGES FACTS SUFFICIENT TO SUPPORT
CLAIMS THAT THE APPLICANT REVIEW
PANEL'S PARTICIPATION IN A PROCESS REQUIRING
CONSIDERATION OF RACE VIOLATES SECTION 31
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The Auditor quotes the proper standard for a facial challenge, but misinterprets its
8 application. InSturgeon v. Bratton, 174 Cal. App. 4th 1407,1418 (2009), cited bythe Auditor, the
9 court explained that a facial challenge considers only the text of the ineasure; it does not apply to
10 the particular circumstances of an individual. A challenger "must demonstrate that the act's
11 provisions inevitably pose a present and fatal conflict with applicable constitutional prohibitions."
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12 Id. Plaintiffs' Second and Fourth Causes of Action meet each ofthose requirenients.
13
Plaintiffs do not claim that the statute is unconstitutional as applied to the particular
14 circumstances of named individuals. Rather Plaintiffs allege that there is no set of circumstances
15 under which the provisions of Government Code section 8252(g) may be implemented without
16 mnning afoul of Section 31. The test is not whether the text of the measure expressly states the
17 nature of the constitutional violation; it is whether the requirements of the measure can be met
18 without violating the constitution. Plaintiffs allege that the act's provisions pose a fatal conflict
19 with Secfion 31. See, e.g., FAC \ 20 ("Government Code section 8252(g) violates Section 31 to
20 the extent that Section 8252(g) requires, authorizes, or encourages public einployees to participate
21 in a process that considers race, ethnicity, or sex as a factor in appointing six members to the
22 Coimnission."); see also *\ 23 (seeking to enjoin ongoing violations ofSection 31 implicit in the
23 selection process required by Section 8252(g)).
24
Plaintiffs allege in their Second and Fourth causes of action that Section 8252(g) requires
25 the Applicant Review Panel to grant preferences and discriminate on the basis of race, etlmicity,
26 and sex, when detennining the 60 most qualified applicants to be included in the pool. FAC
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27 32; 48-50. There is no other method by which to ensure a sufficient pool of applicants to meet the
28 diversity requirements of Section 8252(g). FAC Xi 2, 19.
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011 -80000966-CU-WM-GDS
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1
In order for the eight commissioners to perform their statutoiy duties under Section 8252(g),
2 the public employees on the Applicant Review Panel must create a pool of 60 "of the most
3 qualified applicants." FAC ^ 19 (citing Gov't Code § 8252(d)). The ultiinate goal ofSection
4 8252(g) is to have a Commission that "reflects the state's diversity, including, but not limited to,
5 racial, ethnic, geographic, and gender diversity." FAC If 19 (citing Gov't Code § 8252(g)). The
6 selection scheme requires public employees to consider the qualifications of all applicants,
7 including their race, sex, and ethnicity, in order to create an applicant pool of sufficiently diverse
8 candidates. FAC 19 (citing Gov't Code § 8252(g)). Otherwise, the first eight commissioners will
9 be unable to cany out their statutory duty of forming a racially diverse Commission.
10
Plaintiffs also allege that it is not necessary for the Applicant Review Panel to have actually
11 considered race for the selection process to be unconstitutional. FAC T| 20. Under Section 31, state
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12 actors may neither directly use race to assign benefits or burdens nor indirectly enable, facilitate,
13 or encourage other actors to do so. Hi-Voltage, 24 Cal. 4th at 570 (Mosk, J., concurring). State
14 actors cannot circumvent Section 31 by creating a process where the use of race is exported to a
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15 third party. Plaintiffs allege that the Applicant Review Panel enables, facilitates, and encourages
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16 a process where the final six Commissions are selected on the basis of race. FAC Xl 15-20. These
17 factual allegations support a facial claim that the involvement of public employees in the selection
18 process mandated by Section 8252 is unconstitutional under Section 31. FAC ^ 20.
19
Plaintiffs have plead valid facial claiins, and the deniurrer should be overruled.
20
Ill
21
PROPOSITION 11 DOES NOT
CONFLICT WITH PROPOSITION 209
22
23
The Auditor, like the State, argues that Article I , Section 31, must be harmonized with
24 another provision of the California Constitution in such a way as to allow the use of race and
25 gender in the circumstances leading to this litigation. The Auditor asserts a direct conflict between
26 Article XXI, Section 2(c)(1) (adopted by Proposition 11), and Article I, Section 31 (adopted by the
27 voters as Proposition 209). Article XXI involves a subject completely umelated to that in Article I,
28 Section 31. Article XXI provides for a Citizens Redistricting Coimnission, and Section 2(c)(1)
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011 -80000966-CU-WM-GDS
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1 explains that "[t]he selection process is designed to produce a commission that is independent from
2 legislative influence and reasonably representative ofthis State's diversity."
3
When analyzing a constitutional provision, the first step is to construe its meaning from
4 the natural and ordinary meaning of the words, starting with the plain meaning of the words
5 included in the proposition understood in their common usage. The natural and ordinaiy nieaning
6 ofthe word "diversity" is "to make diverse: give variety to; to balance." Merriam-Webster's
7 Collegiate Dictionary 366 (11th ed. 2003). Diversity nieans many things when discussing a large
8 state like Califomia. It can mean economic, political, or geographic diversity, but under Article 31,
9 it carmot mean race, ethnicity, or gender. Thus, the two provisions of the Constitution can be
10 reconciled by interpreting the word "diversity" in Ailicle XXI, Section 2(c)( I), to include all of the
11 types of diversity, except those prohibited by Ailicle I, Section 31. As discussed above, there is
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12 no support for the Auditor's suggestion that Section 31 is not applicable to the process for selecting
13 commissioners.
14
The Auditor claims that "diversity" in Article XXI, Section 2(c)(1), must have the same
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15 nieaning as it does in Govermnent Code section 8252(g). The Auditor offers no authority for this
16 interpretation, nor does the statement fmd any support in the rules of constitutional and statutory
17 construction.
18
The fundamental objective of statutory interpretation is to ascertain and effectuate the
19 intent of the enacfing body. In re Lance W., 37 Cal. 3d 873, 889 (1985) ("[T]he intent ofthe
20 enacting body is the paramount consideration.").
Although Section 8252 implements the
21 provisions of Article XXI, there is no evidence that either the Legislature or the voters intended the
22 constitutional portion of the proposition to mirror the language of the statute. "Where different
23 language is used in different parts of the same statute, it must be presumed that the Legislature
24 intended a different effect." Demchuk v. State Dep't of Health Servs., 4 Cal. App. 4th Supp. 1, 4
25 (1991) (citing Charles S v. Bd of Educ, 20 Cal. App. 3d 83, 95 (1971)). "[I]t must also be
26 presumed that the Legislature 'knew that it was saying and meant what it said.'" Id. (citation
27 omitted). Thus, it must be presumed in this case that the Legislature would have included the same
28 language in the constitutional and statutory portions of Proposition 11 had that been its intent. And
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS
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1 because the Legislature is presumed to know existing law, it is more likely that the Legislattire
2 purposefully refi-ained from including language in Article XXI, Section 2(c)(1), that it knew would
3 conflict with Section 31.
4
There is no evidence that the voters gave any thought to the different meanings of diversity
5 in Article XXI, Secfion 2(c)(1) and Secfion 8252(g). Proposition 11 amended the constitufion to
6 "change the redistricting process for the state Legislature, BOE, and Califomia members of the
7 U.S. House of Representatives, begimiing with the 2010 census." Legislative Analyst's Analysis
8 at 70, attached as Exhibit 2 to Plaintiffs' Request for Judicial Notice. The Legislative Analyst
9 explained that an Applicant Review Panel would narrow the applicants down to 60, and "[t]he
10 panel would pick the most qualified applicants based on analytic skill, impartiality, and
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11 appreciation of California's diversity." Id. Other Proposition 11 ballot materials do not even
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12 discuss the word "diversity" or the language ofSection 8252(g).
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Section 8252(g) conflicts with Article I, Section 31, of the constitution. The constitutional
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14 provision must prevail. Arden Carmichael, Inc. v. County ofSacramento, 79 Cal. App. 4th 1070,
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15 1077 (2000) ('"Wherever statutes conflict with constitufional provisions, the latter must prevail.'")
16 (quoting People v. Navarro, 1 Cal. 3d 248, 260 (1972)).
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CONCLUSION
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For all of the foregoing reasons. Plaintiffs Ward Connerly and American Civil Rights
19 Foundation respectfully request that this Court overrule the DemuiTer of the State Auditor of
20 California.
21
DATED: May 18,2012.
22
Respectfully submitted,
23
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON
ADAM R. POMEROY
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27
»RALPH W. KASARDA
28
Attomeys for Plaintiffs and Petitioners
Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS
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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 Califomia, residing or employed in Sacramento, California.
4 I am over the age of 18 years and am not a party to the above-entitled action. My business address
5 is 930 G Street, Sacramento, California 95814.
6
On May 18, 2012, true copies of PLAINTIFFS' OPPOSITION TO DEMURRER BY
7 STATE AUDITOR were placed in envelopes addressed to:
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12
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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 Commission
MARGARET CAREW TOLEDO
Mennemeier, Glassman & Stroud LLP
980 Ninth Street, Suite 1700
Sacramento, CA 95814
Counsel for Defendant Elaine M. Howie,
State Auditor of California
16 which envelopes, with postage thereon fully prepaid, were then sealed and deposited in a mailbox
17 regularly niaintained by the United States Postal Service in Sacramento, Califomia.
18
I declare under penalty of perjury that the foregoing is true and correct and that this
19 declaration was executed this 18th day ofMay, 2012, at Sacramento, Califomia.
20
21
22
BARBARA A. SIEBERT
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Pltfs' Oppo to Demurrer by State Auditor
Compl - No. 34-2011-80000966-CU-WM-GDS