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1 MERIEM L. HUBBARD, No. 155057
ENDORSED
E-mail: mlh@pacificlegal.org
2 RALPH W. KASARDA, No. 205286
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12 MAY 21* ?m UU
E-mail: r\vk@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, Califomia 95814
Telephone: (916)419-7111
Facsimile: (916)419-7747
•LEGAL PROCESS ;^^4
8 Attomeys for Plaintiffs and Petitioners
9
SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SACRAMENTO
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Plaintiffs and Petitioners,
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No. 34-2011-80000966-CU-WM-GDS
AMERICAN CIVIL RIGHTS FOUNDATION,
13 a nonprofit public benefit corporation.
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12 WARD CONNERLY, a citizen and taxpayer, and
16 STATE OF CALIFORNIA, ELAINE M. HOWLE,
in her official capacity as the STATE AUDITOR OF
17 CALIFORNIA, and the CALIFORNIA CITIZENS
18
19
PLAINTIFFS'
OPPOSITION TO AMICUS
BRIEF OF CALIFORNIA
COMMON CAUSE,
LEAGUE OF WOMEN
VOTERS OF CALIFORNIA,
AND CALIFORNIA NAACP
REDISTRICTING COMMISSION,
Defendants and Respondents.
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PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011-80000966-CU-WM-GDS
Date:
Time:
Place:
Judge:
June 1,2012
9:00 a.m.
Department 31
The Flon. Michael Kenny
1
Plaintiffs Ward Connerly and American Civil Rights Foundation respectflilly submit the
2 following arguments in opposition to the amicus brief of California Common Cause, League of
3 Women Voters of California, and Califomia NAACP in Support of DemuiTcr.
4
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ARTICLE I, SECTION 31, PROMOTES
THE INCLUSION OF ALL RACES
6
7
Amici question Article I, Section 3I's (Section 31), legitimacy, musing about the ability
8 of all racial groups to participate in govemment. Amicus Brief at 4-5. Their concerns are
9 misplaced because Section 31 promotes the inclusion of all racial groups by memorializing the
10 understanding that "a preference to any group constitutes inherent inequality" and that preferences
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11 "for any purpose" are "anathema to the veiy process of democracy." Hi-Voltage Wire Works, Inc.
12 V. City of San Jose, 24 Cal. 4th 537, 561 (2000) (citation omitted). The voters understood that
13 "discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wiong, and
14 destructive of democratic society." Id. at 548 (citation omitted). Amici, however, are not seeking
15 access for all groups to the Redistricting Commission. Instead they seek a Commission that is
16 properly balanced, a "portrait, in miniature" ofthe people. Amicus Br. at 5 (citation omitted). But,
17 "[rjacial balance is not to be achieved for its own sake." Parents Involved in Cmty. Schs. v. Seattle
18 Sch. Dist. No. I , 551 U.S. 701, 729-30 (2007) (citation omitted); City ofRichmond v. J.A. Croson
19 Co., 488 U.S. 469, 507 (1989); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978)
20 (opinion of Powell, J.) ("If petitioner's purpose is to assure within its student body some specified
21 percentage of a particular group merely because of its race or etlmic origin, such a preferential
22 purpose must be rejected . . . as facially invalid.").
23
Plaintiffs, in their Opposition to the State's Demurrer at 10-11, explain why reliance on
24 Grutter v. Bollinger, 539 U.S. 306 (2003), is misplaced in this case.
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PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011 -80000966-CU-WM-GDS
1
II
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SECTION 8252(G) REQUIRES CONSIDERATION
OF THE RACE OF AN INDIVIDUAL OR A GROUP,
WHICH HAS NEVER BEEN UPHELD UNDER SECTION 31
3
4
Article I, Section 31, is violated any time the State classifies individuals or groups by race'
5 when making decisions in the operation of public employment; violation does not hinge on whether
6 the challenged program involves numerical goals or requirements. "Rather than classiiying
7 individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by
8 race or gender." Hi-Voltage, 24 Cal. 4th at 561 (quoting Coal, for Econ. Equality v. Wilson,
9 122 F.3d 692, 702 (9th Cir. 1997); Cal. Const, art I, § 31(a).
10
11 4th 207 (2009), is misplaced. In Berkeley, the school assignment program never considered the
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Amici's reliance on Am. Civil Rights Found, v. Berkeley Unified Sch. Dist., 172 Cal. App.
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12 race of an individual student or group of students. Id. at 217-18, 222. Listead, the program
13 assigned diversity scores based on the generalized makeup ofthe neighborhood where students
14 lived. Id. at 213-14. A "diversity category" did "not consider an individual student's race at all,"
15 id. at 211, it only gave generalized information conceming the socio-economic and racial makeup
16 of different Berkeley neighborhoods. Id. No individual student's race was ever relevant to
17 determining school assignments. Id. at 213 ("[T]he actual personal attributes of students is not
18 relied upon in detennining student assignments." (intemal quotations omitted).
19
Section 8252(g) is anything but race neutral. It requires that the last six commissioners be
20 classified and analyzed upon the basis of their actual race: "The six appointees shall be chosen to
21 ensure the commission reflects this state's diversity," including race. Gov't Code § 8252(g).
22 Unlike the plan in Berkeley, this requirement guarantees that the six commissioners will be
23 analyzed on the basis of race, whether individually or as a slate of six. See Cal. Code of Regs,
24 tit. 2, §§ 60848, 60850, 60860; Plaintiffs Opp. to State's DemuiTer at 8-11; First Amended
25 Complaint (FAC) ^ 2. The entire process is structured to guarantee a racially diverse Commission,
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 State from discriminating, or granting preferences, based on all of
28 these factors. Cal. Const, art. I, § 31(a).
PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-201 l-80000966-CU-WiV1-GDS
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1 based upon each ofthe last six appointees' individual analytical skills, ability to be impartial, and
2 contribution to the overall racial makeup of the Commission. Gov't Code § 8252(g); Cal. Code
3 of Regs. tit. 2, § 60860; Demun-er of State of California and the Califomia Citizens Redistricting
4 Commission (State's Demurrer) at 12 (admitting the requirement to consider race); Plaintiffs' Opp.
5 to State's Demuner at 8-11; FAC
6
15-20.
The only other case raised by Amici is not only unambiguously contra to their contention
7 that other Califomia cases have allowed consideration of race under Section 31, but it actually
8 supports Plaintiffs' arguments. First, Los Angeles Cnty. Prof'I Peace Officers Ass'n v. Cnty. of
9 LosAngeles,lio.Bl5n37,2002Cal. App.Unpub.LEXIS5596,2002 WL 1354411 (Cal.Ct. App.
10 June 20,2002), is an unpublished opinion and, therefore, Amici are prohibited from relying on or
11 even citing to the case. Cal. R. Ct. 8.1115(a). Second, even if the case was good law, it does not
2
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12 support Amici's argument. The court did not uphold the program despite the program's use of
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13 racial considerations, it upheld the County's Policy on Diversity because it did not consider race
14 at all. Los Angeles Cnty. Prof'I Peace Officers Ass'n, 2002 Cal. App. Unpub. LEXIS 5596
15 at * 15-17. "The Policy on Diversity reasonably can be read to discourage discrimination against
16 any particular race or gender." Id. at * 17.
17
OH
There are no cases allowing the categorization of individuals or groups by race under
2^
18 Section 31. Amici have cited no case to support their contention that a program may consider an
19 individual's race and survive scrutiny under Section 31. Instead, they merely repeat Defendants
20 State of Califomia's and Citizen Redistricting Commission's argument that racial considerations
21 may be used here because they are not "the sole or detemiinative criterion" or "factor" and are
22 instead "limited." Cf. Amicus Br. at 9-10 with State's Demuner at 12, 14-15; see also Demuner
23 of the State Auditor (Auditor's Demurrer) at 5 (joining in the State's Demuner). Plaintiffs
24 addressed this inconect argument in their Opposition to the State's Demuner at 8-11. Quite
25 simply, no court has ever approved a program that categorizes individuals or groups by race.
26 ///
27 ///
28 ///
PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011 -80000966-CU-WM-GDS
-3
1
III
2
PROPOSITION 11 DID NOT CREATE
AN EXCEPTION TO SECTION 1, ARTICLE 31
3
4
Amici's statutory interpretation arguments are the same as those made by the State Auditor.
5 Plaintiffs' responded to those arguments in their Opposition to Auditor's Demurrer at 6:23-8:16,
6 and limit their response here to a few points.
7
Like the Auditor, Amici argue that the word "diversity" in Article XXI, Section 2(c)(1),
8 "must mean the same thing in Proposition 11 's constitutional mandate" as it does in Govemment
9 Code Section 8252(g). Amicus Br. at 10 n.3; Auditor's Demuner at 9:26-10:24. The argument
10 is wrong for at least three reasons. First, it does not consider the rule of construction providing that
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12 the Legislature intended a different effect." Demchuk v. State Dep't ofHealth Servs., 4 Cal. App.
13 4th Supp. 1, 4 (1991) (citing Charles S. v. Bd of Educ, 20 Cal. App. 3d 83, 95 (1971)). Second,
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11 "[wjhere different language is used in different parts of the same statute, it must be presumed that
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14 Amici ignore the fact that implementing provisions "remain subject to judicial challenge in
15 subsequent cases on the basis that they may inconectly manifest the intent o f the constitutional
16 provision that they support. Amador Valley Joint Union High Sch. Dist. v. State Bd. of
17 Equalization, 22 Cal. 3d 208,247 (1978). Plaintiffs have properly challenged the constitutionality
18 of Section 8252(g).
19
Third, Amici have not presented, ajid cannot, present any evidence that the voters who
20 adopted Proposition 11 intended to create an exception to Article 1, Section 31. As Plaintiffs
21 explain in their Opposition to the Auditor's Demuner at 8:4-12, it cannot be presumed that the
22 voters considered, or were even aware of, the "diversity" aspect of Proposition 11, because the
23 voter materials did not contain a single reference to that portion of the initiative.
24
Proposition 209, adopting Article I, Section 31, set out a clear constitutional mandate
25 prohibiting the use of race in govemment operations. Exceptions to that mandate were specifically
26 and clearly set out in the ballot materials. See Plaintiffs' Opp. to State's Demuner at 13:11-14:2.
27 Additional "exceptions" to Section 31 carmot result from a statute implementing a constitutional
28 ///
PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011-80000966-CU-WM-GDS
- 4-
1 provision adopted by the voters to accomplish a goal wholly unrelated to the goal of
2 Proposition 209.
3
IV
4
A FACIAL CHALLENGE CONSIDERS THE
GENERAL SCOPE AND DOMINANT FEATURES
OF A STATUTE TO DETERMINE ITS EFFECT
5
6
Amici repeat the Auditor's argument regarding the nature of a facial challenge. Amicus Br.
7 at 6:16-7:10; Auditor's Demuner at 8:17-9:11:17; see Plaintiffs' Opp. to Auditor's Demuner
8 at 5:7-6:19. However, Amici state specifically what is only hinted at in the Auditor's argument—
9 that, in a facial challenge, the court cannot consider facts other than the words of the statute itself
10 See Amicus Br. at n.4 ("[BJecause the First Amended Complaint brings only a facial challenge to
11 Government Code section 8252(g), the implementing regulations are not at issue here."). While
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12 the implementing regulations are not challenged in this lawsuit, they may shed light on whether
13 Section 8252(g) can be implemented without violating Section 31. And the ability to consider
14 evidence is present in both facial and as-applied challenges to the validity of a statute.
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A statute is facially invalid if it cannot be applied, under any set of facts, without violating
16 the constitution.- Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 1084 (1995) (Plaintiffs bringing a
17 facial challenge must demonstrate that the provisions conflict with applicable constitutional
18 prohibitions.). Plaintiffs allege that Section 8252(g) poses a fatal conflict with Section 31. See,
19 e.g, FAC
20
20 & 23; Plaintiffs' Opp. to Auditor's Demuner at 5:18-6:18.
When reviewing a facial challenge to a statute, courts look to the words of the statute and
21 must inteipret the effect to understand the general scope and dominate features. See Yee v. City of
22 Escondido, 503 U.S. 519, 526-31 (1992) (a facial challenge where the court analyzed how a rent
23 control ordinance operated in conjunction with other laws to determine its economic effect on
24 mobile home park owners and their tenants). The effect of a statute is determined by considering
25 the manner by which it is implemented and interpreted. Forsyth County, Ga. v. Nationalist
26 Movement, 505 U.S. 123, 131 (1992) ("In evaluating respondent's facial challenge, we must
27
^ An as-applied challenge seeks relief from a specific application of a facially valid statute or
28 ordinance. Tobe, 9 Cal. 4th at 1084.
PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-20II-80000966-CU-WM-GDS
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1 consider the county's authoritative constructions of the ordinance, including its own
2 implementation and inteipretation of it."); Garneau v. City of Seattle, 147 F.3d 802, 807-08
3 (9th Cir. 1998) (stating that plaintiffs bringing a facial challenge must produce evidence showing
4 that the value of their property diminished as a consequence of the regulation); Richardson v. City
5 & County ofHonolulu, 124 F.3d 1150,1154 n.2 (9th Cir. 1997) (providing an example using exact
6 dollar amounts as "illustrative" of the economic impact of the regulation in a facial challenge).
7
Amici cite to Cal. Fann Bureau Fed'n v. State Water Res. Control Bd.,5\ Cal. 4th 421,
8 436-46 (2011), and include the following misleading description of the holding: "rejecting facial
9 challenge to statute and analyzing implementing regulations under an as-applied analysis." Amicus
10 Br. at 12 n.4. The facial challenge in that case questioned the constitutionality of a statute creating
11 a regulatory fee. Plaintiff argued that the statute was unconstitutional on its face because it actually
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12 imposed a tax, not a valid regulatory fee. Id. at 437. An excessive fee used to generate general
13 revenue becomes a tax. Id. at 438. The court detennined that plaintiff could not bring a facial
14 challenge because the language of the statute revealed a specific intention to avoid imposing a tax,
15 id., and did not require the collection of more than administrative costs, id. at 439-40. The facts
16 in the instant case are far different. The language of Section 8252(g) contains no language to save
17 it from a facial attack.
18
Plaintiffs must be allowed an opportunity to demonstrate that Section 8252(g) cannot be
19 applied in any circumstance without violating Section 31.
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PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011 -80000966-CU-WM-GDS
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CONCLUSION
1
2
For the foregoing reasons, Plaintiffs Ward Connerly and American Civil Rights Foundation
3 respectfully request that this Court ovenule the Defendants' demuners.
4
DATED: May 24, 2012.
5
Respectflilly submitted,
6
MERIEM L. HUBBARD
RALPH W. KASARDA
JOSHUA P. THOMPSON
ADAM R. POMEROY
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,A-DAM R. POMERQY-
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Attomeys"forPlamtiffs and Petitioners
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PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
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 ofCalifomia, residing or einployed in Sacramento, Califomia.
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, Califomia 95814.
6
On May 24, 2012, true copies of PLAINTIFFS' OPPOSITION TO AMICUS BRIEF OF
7 CALIFORNIA COMMON CAUSE, LEAGUE OF WOMEN VOTERS OF CALIFORNIA, AND
8 CALIFORNIA NAACP were placed in envelopes addressed to:
9
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DANIEL J. POWELL
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415)703-5830
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
Telephone: (916) 553-4000
Counsel for Defendant Elaine M. Howie,
State Auditor of California
MARK R. CONRAD
Munger, Tolles & Olson LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105-0913
Telephone: (415)512-4000
Counsel for Proposed Amici Curiae
CCC, LWVC, & CNAACP
21 which envelopes, were sent via Federal Express in Sacrainento, Califomia.
22
I declare under penalty of perjury that the foregoing is true and correct and that this
23 declaration was executed this 24th day of May, 2012, at Sacramento, Califomia.
24
25
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BARBARA A. SIEBERT
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PItfs' Oppo to AC Brief of CCC, LWVC, & CNAACP
No. 34-2011-80000966-CU-WM-GDS
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