L. Feriozzi Concrete Company v. Casino Reinvestment Development Authority Brief Amicus Curiae in Support of Appellants

    SUPERIOR COURT OF NEW JERSEY 
APPELLATE DIVISION 

DOCKET NO.: A-005057-99T5

L. FERIOZZI CONCRETE COMPANY, a 
New Jersey Corporation, and 
CONCETTA FERIOZZI,

Plaintiffs-Respondents, 

v .

ON APPEAL FROM:
SUPERIOR COURT OF NEW JERSEY 
ATLANTIC COUNTY: LAW DIVISION 
DOCKET NO.: ATL-L-2003 - 99

SAT BELOW: HON. MICHAEL 
WINKELSTEIN, A.J.S.C.

CASINO REINVESTMENT DEVELOPMENT 
AUTHORITY and JAMES B. KENNEDY, 
Executive Director of the 
CASINO REINVESTMENT DEVELOPMENT 
AUTHORITY,

Defendants-Appellants.

BRIEF OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND AS 
AMXCUS CURIAE IN SUPPORT OF APPELLANTS

John J. Gibbons 
Lawrence S . Lustberg 
Jessica A. Roth 
GIBBONS, DEL DEO, DOLAN, 
GRIFFINGER & VECCHIONE 
A Professional Corporation 
One Riverfront Plaza 
Newark,
New Jersey 07102-5497

Theodore M. Shaw 
Norman J. Chachkin 
NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, NY 10013-2987



TABLE OF CONTENTS
TABLE OF AUTHORITIES ..........................

PROCEDURAL HISTORY .... .........

INTEREST OF AMICUS CURIAE ............................

STATEMENT OF FACTS .............................

SUMMARY OF ARGUMENT ............................

ARGUMENT ..........................................

POINT I ...........................................

THE TRIAL COURT ERRED WHEN, HAVING FOUND THAT THE 
SET-ASIDE ACT WAS NOT NARROWLY TAILORED, IT 
REACHED THE QUESTION OF COMPELLING STATE 
INTEREST...........................................

POINT II ........................................

THE STATE OF NEW JERSEY, NOT THE CRDA, IS THE 
RELEVANT GOVERNMENTAL UNIT FOR PURPOSES OF 
DETERMINING WHETHER THE CRDA'S IMPLEMENTATION OF 
THE SET-ASIDE ACT SERVES A COMPELLING STATE 
INTEREST...........................................

CONCLUSION .......................................

CERTIFICATE OF SERVICE .........................

l



TABLE OF AUTHORITIES
CASES

Adarand Constructors v. Pena.
515 U. S . 200 (1995) ........................................  5, 7

Adkins v. Children's Hospital.
261 U. S . 394 (1923) .........................................  13

Allen v. Countv School Bd..
207 F . Supp, 349 (E.D. Va. 1962) .............................  23

American Mfrs. Mut. Ins. Co. v. Sullivan.
526 U . S . 40 (1999) ...........................................  11

Ashwander v. TVA.
297 U. S . 288 (1936) ........................................... 8

Associated General Contractors v.
City and County of San Francisco.
813 F\2d 922 (9th Cir. 1987) ................................. 20

Associated General Contractors v.
Coalition for Economic Equity.
950 F\2d 1041 (9th Cir. 1991) ................................20

Associated General Contractors v. Drabik.
214 Fk_3d 730 (6th Cir. 2000) .................................  19

Bazemore v. Friday.
478 U.S. 375 (1986) ........................................... 5

Brown v. Board of Educ..
347 U.S. 483 (1954) ........................................... 4

Brunet v. City of Columbus,
1 Fk3d 390 (6th Cir. 1993) ....................................  21

Bush v. Vera.
517 U.S. 952 (1996) ........................................  8, 9

City of Chicago v.
International College of Surgeons.
522 U.S. 156 (1997) ........................................... 8

Concrete General. Inc, v. Washington 
Suburban Sanitary Commission.
779 F . Supp, 370 (D. Md. 1991) .......................... 11, 21

- ii -



Concrete Works of Colorado. Inc, v. Denver.
36 Fh3d 1513 (10th Cir. 1994) ................................ 20

Contractors Assoc, v. City of Philadelphia.
91 F\3d 586 (3d Cir. 1996) ............................... 10, 19

Contractors Assoc, v. City of Philadelphia.
6 F\3d 990 (3d Cir. 1993) ................................. 8

Croson v. City of Richmond.
488 U.S. 469 (1989) ............................... 7, 15, 18, 23

Donadio v. Cunningham.
58 N.J. 309 (1971) ............................................ 9

Edward J. DeBartolo Corp. v.
Florida Gulf Coast Bldg. & Constr. Trades Council.
485 U.S. 568 (1988) .................... ....................... 8

Eisenberg v. Montgomery County Public Schools,
197 F\3d 123 (4th Cir. 1999) ................................. 10

Engineering Contractors Assoc, 
v. Metropolitan Dade County.
943 F . Supp. 1546 (S.D. Fla. 1996) ..........................  20

F. Buddie Contracting. Ltd.
v. Cuvahonga Community College Dist..
31 F. Supp .2d 571 (N.D. Ohio 1998) ..........................  20

FCC v. Beach Communications. Inc.,
508 U.S. 307 (1993) ......................................  12, 13

Gautreaux c. Chicago Hous. Auth..
503 Fh2d 930 (7th Cir. 1974) ................................. 22

Griggs v. Duke Power Co..
401 U.S. 424 (1971) ........................................... 5

Grobart v. Grobart.
5 N.J. 161 (1950) ............................................. 9

Hall v. St. Helena Parish School Bd..
19V F. Supp. 649 (1962) ......................................  22

Hanev v. County Bd- of Educ..
410 Fh_2d 920 (8th Cir. 1969) .................................. 23

- iii -



Hiller v. County of Suffolk.
977 F . Supp. 202 (E.D.N.Y. 1997) ............................. 10

Hopwood v. State of Texas.,
78 FL3d 932 (5th Cir. 1996) .........................  15, 16, 17

Hopwood v. State of Texas.
861 F . Supp. 551 (W.D. Tex. 1994) .............................5

Houston Contractors Assoc, v.
Metropolitan Transit Auth..
993 F . Supp, 545 (S.D. Tex. 1997) ..... -...................... 21

Johnson v. Board of Regents.
2000 U.S. Dist. LEXIS 10541 (D.S. Ga. July 24, 2000) .......  11

Kane v. Freeman.
1997 WL 158315 (M.D. Fla. 1997) .............................. 22

McDonnell Douglas Corp, v. Green.
411 U.S. 792 (1973) ........................................... 4

McKennon v. Nashville Banner Publishing Co..
513 U.S. 352 (1995) .......................................... 5

Monterey Mechanical Co. v. Wilson.
125 F\3d 702 (9th Cir. 1997) ................................. 19

N.A.A.C.P. v. Button.
371 U.S. 415 (1963) ........................................... 4

O'Donnell Const. Co.
v. District of Columbia.
963 F\2d 420 (D.C. Cir. 1992) ................................ 20

O'Keefe v. Passaic Valley Water Commission.
132 N . J . 234 (1993) ........................................... 9

Phillips & Jordan. Inc, v. Watts,
13 F. Supp .2d 1308 (N.D. Fla. 1998) ....... ................... 21

Phillips v. Martin Marietta.
400 U.S. 542 (1971) ........................................... 5

Podberesky v. Kirwan.
38 F\3d 147 (4th Cir. 1994) ...................................5

Poindexter v. Louisiana Financial Assistance Comm'n.
258 F , Supp. 158 (E.D. La. 1966) ............................  23

IV



Rescue Army v. Municipal Court,
331 U. S . 549 (1947) ............................... 8, 11, 12, 13

Saint Francis College v. Al-Khazraii.
481 U. S . 604 (1987) ............................................ 5

Shaw v . Hunt,
517 U. S . 899 (1996) ........................................  8, 9

State v. Salerno,
27 N. J. 361 (1958) ............................................ 9

State v. Zucconi.
50 N. J. 361 (1967) ............................................ 9

Three Affiliated Tribes v. Wold Engineering,
467 U. S . 138 (1984) ........................................... 8

Tuttle v. Arlington County School Board,
195 T\3d 698 (4th Cir. 1999) ................................. 10

United States v. Raines.
362 IJ. S . 17 (1960) ............................................ 8

Williams v. Babbitt.
115 Fh3d 657 (9th Cir. 1997) ................................. 10

Wygant v. Jackson Bd. of Educ.,
476 II. S . 267(1986) .....................................  7, 9, 15

STATUTES
Casino Control Act,
N. J. S .A. 5:12-181 et s e q ..................................... 16

New Jersey Set-Aside Act for Small Businesses,
Female Businesses, and Minority Businesses,
N .J .S .A . 52:32-17, et sea. .............................. passim

OTHER AUTHORITIES
Final Report of the State of New Jersey's Governor's
Commission on Discrimination in Public Works_Procurement
and Construction Contracts (1993) .......................  18, 24

REGULATIONS
N . J . A . C . 17:14............................................. 11 < i8

V



PROCEDURAL HISTORY
In May 1999, the Casino Reinvestment Development Authority 

(the "CRDA" or the "Authority") released an advertisement for 

bids (the "Bid Advertisement") for the construction of the Civil 

Rights Garden component of the CRDA's Carnegie Library Project 

(the "Contract"). Sealed bids were to be received by the

Authority by 4:00 p.m. on June 4, 1999. Pursuant to the Bid

Advertisement and, in accordance with the New Jersey Set-Aside 

Act for Small Businesses, Female Businesses, and Minority 

Businesses (the "Set-Aside Act"), N .J .S .A . 52:32-17, et seq. .

prospective bidders were notified that the Contract required 

bidders to make a good faith effort to meet a stated set-aside 

goal of thirty (30%) percent of the total contract value for 

Minority Business Enterprise ("MBE") participation. Da-15.

On June 2, 1999, L. Feriozzi Concrete Co. and Concetta

Feriozzi (collectively "Feriozzi") filed an Order to Show Cause 

and Verified Complaint in Lieu of Prerogative Writ seeking to 

enjoin the Authority from opening bids as scheduled on June 4, 

1999 and from awarding the Contract. Da-1. Oral argument was 

conducted the morning of June 4 and the Honorable Richard J. 

Williams denied Feriozzi's application for preliminary 

injunctive relief holding that Feriozzi was unable to establish 

a likelihood of success on the merits. Da-206.

1



Prior to 4:00 p.m. on June 4 Feriozzi and two other

contractors submitted bids to the Authority pursuant to the Bid 

Advertisement. Based upon a review of the three bids submitted 

and a determination that Feriozzi' s bid was the lowest, 

responsive bid, the Authority, at its public meeting on June 8, 

awarded the Contract to Feriozzi. Da-37. On June 18, 1999, 

Feriozzi, although the successful bidder, filed yet another 

Order to Show Cause to enjoin the Authority from taking any 

action in furtherance of the Contract for the Civil Rights 

Garden. This time, the Honorable Michael Winkelstein denied 

plaintiffs' application for injunctive relief. Da-208.

Following expedited discovery, Feriozzi filed a motion for 

summary judgment and the Authority cross-moved for summary 

judgment. For the purposes of the cross-motions for summary 

judgment, plaintiffs conceded the validity of a study 

commissioned by the State which documented past discrimination 

in State contracting and procurement. Da-234-235. On November 

5, 1999, the Court issued a written opinion, granting 

plaintiffs' motion for summary judgment and holding that the 

Authority's set-aside program and the set-aside component of the 

Contract violated the Equal Protection Clauses of the Fifth and 

Fourteenth Amendments of the United States Constitution. Da- 

245-79. On April 10, 2000, the Court entered a consent order 

for final judgment. Da-282.

2



The Authority filed a notice of appeal on May 24, 2000. On 

June 29, 2000, the CRDA requested a 30-day extension of time 

within which to file its appellate brief, which is now due 

August 9, 2000. The NAACP Legal Defense and Educational Fund 

seeks to participate in this action as amicus curiae in support 

of the CRDA, and has filed concurrently with this brief a motion 

for leave to do so.

3



INTEREST OF AMICUS CURIAE
Amicus curiae the NAACP Legal Defense and Educational Fund 

Inc. (LDF) was incorporated in 193 9 under the laws of New York 

State, for the purpose, inter alia, of rendering legal aid free 

of charge to indigent "Negroes suffering injustices by reason of 

race or color." Its first Director-Counsel was Thurgood 

Marshall. LDF has appeared as counsel of record or amicus 

curiae in numerous cases before the United States Supreme 

Court, the Courts of Appeals, and the federal District Courts, 

involving constitutional and statutory civil rights guarantees. 

See, e . a . , Brown v. Board of Educ. , 3 4 7 U. S . 4 8 3 (1954) ; see

also N.A.A.C.P. v. Button. 371 U.S. 415, 422 (1963) (describing

Legal Defense Fund as a "'firm' . . . which has a corporate 

reputation for expertness in presenting and arguing the 

difficult questions of law that frequently arise in civil rights 

litigation").

For much of its history, the United States offered its 

citizens little or no protection against invidious

discrimination and made no pretense of equality of opportunity 

without regard to race. LDF was involved in landmark cases

attacking barriers to equal participation in our nation's 

economic life, e . g . . McDonnell Douglas Corp. v. Green. 411 U.S. 

792 (1973) , and in seeking to assure that past discrimination

not be given present effect, e .g ., Bazemore v. Friday, 478 U.S.

4



3 75 (198 6) ; Griggs v. Duke Power Co.. 401 U. S . 424 (1971) . LDF

has also participated in cases targeting arbitrary exclusion 

based on gender, Phillips v. Martin Marietta. 400 U. S . 542

(1971) ; age, McKennon v. Nashville Banner Publishing Co. . 513

U. S . 352 (1995); and national origin, Saint Francis College v. 

Al-Khazraii. 481 U.S. 604 (1987).

To ensure that the nation's history of inequality and 

exclusion does not become its destiny (and to counteract the 

"unhappy persistence" of present-day discrimination, Adarand 

Constructors v. Pena. 515 U. S . 200, 237 (1995)), LDF believes

that appropriately tailored measures that take race into 

consideration, including affirmative action programs voluntarily 

undertaken to address current patterns of racial inequality and 

exclusion, see. e .g .. Adarand; Hopwood v. State of Texas. 861 F . 

Supp. 551 (W.D. Tex. 1994); Podbereskv v. Kirwan. 38 FL.3d 147 

(4th Cir. 1994), cert, denied sub nom. Greene v. Podberesky. 514 

U. S . 1128 (1995) , are not only essential but are fully

constitutional. Accordingly, LDF is committed to preserving

such appropriately tailored state and local remedial action 

programs. Because this case raises important questions about 

the future of New Jersey's remedial action program in public 

contracting, LDF has sought to participate in this action as 

amicus curiae, and submits this brief in support of the CRDA's 

defense of New Jersey's Set-Aside Act.

5



STATEMENT OF FACTS
Amicus adopts the statement of facts set forth in 

Defendants' Brief.

SUMMARY OF ARGUMENT
Amicus curiae supports the position of the CRDA and does 

not seek to repeat the CRDA's arguments herein. Instead, amicus 

curiae submits this brief solely with respect to two discrete 

legal errors committed by the trial court that are of particular 

significance to amicus curiae. First, the trial court erred in 

reaching the constitutional question of whether the Set-Aside 

Act, as implemented by the CRDA, serves a compelling state 

interest, an unnecessary holding given that the Court had 

determined that the Set-Aside Act was not narrowly tailored. 

Second, the trial court erred by holding that the CRDA was the 

relevant governmental unit for purposes of evaluating the 

lawfulness of the CRDA's implementation of the New Jersey Set- 

Aside Act. As set forth below, the correct governmental unit 

for purposes of that analysis is the State of New Jersey, not 

the CRDA.

6



ARGUMENT
POINT I

THE TRIAL COURT ERRED WHEN, HAVING FOUND 
THAT THE SET-ASIDE ACT WAS NOT NARROWLY 
TAILORED, IT REACHED THE QUESTION OF 
COMPELLING STATE INTEREST.

The trial court erred in unnecessarily reaching the 

constitutional question of whether the Set-Aside Act, as 

implemented by the CRDA, serves a compelling state interest, 

once it had decided that the Set-Aside Act was inadequately 

tailored.1 It is undisputed that the Set-Aside Act is subject to 

strict scrutiny, and must therefore be narrowly tailored to 

serve a compelling state interest. Adarand Constructors. Inc, 

v . Pena, 515 U . S . 200, 227 (1995); Croson v. City of Richmond,

488 U ,S . 469, 505-07 (1989); Wygant v. Jackson Bd. of Educ., 476

U. S . 267, 279-80 (1986) . Because a statute subject to strict

scrutiny can only be sustained if it meets both prongs of that 

test, the trial court need not have considered whether the Set- 

Aside Act, as implemented by the CRDA, meets the compelling 

interest prong of strict scrutiny once it had determined that 

the Act was not narrowly tailored to the asserted State

1 Amicus curiae agrees with, and therefore does not repeat here, 
the CRDA's arguments that the Set-Aside Act is narrowly 
tailored, and joins the CRDA is urging this Court to reverse the 
trial court's judgment. However, amicus curiae presents this 
section of its brief for consideration in the event that this 
Court affirms the trial court's ruling that the Set-Aside Act is 
not narrowly tailored.

7



interest. See, e.q. , Bush v. Vera, 517 U. S . 952, 979 (1996)

(deciding equal protection challenge to redistricting plan on 

basis of lack of narrow tailoring without reaching compelling 

interest inquiry); Shaw v. Hunt. 517 U.S. 899, 911 (1996) 

(same). Indeed, considerations of judicial restraint and the 

preference for avoiding "needlessly confronted" constitutional 

issues, see Edward J. DeBartolo Corp. v. Florida Gulf Coast 

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988), should

have counseled the trial, court to confine its ruling to the 

issue of narrow tailoring.

It is well established under both federal and state 

jurisprudence that, as a general matter, courts should only 

reach constitutional issues that are properly before them and 

that are necessary to the adjudication of the specific dispute. 

"It is a fundamental rule of judicial restraint . . . that [the

United States Supreme Court] will not reach constitutional 

questions in advance of the necessity of deciding them." Three

Affiliated Tribes v. Wold Enctineerina. 467 U.S. 138, 157-58

(1984) . See also Citv of Chicaao v. International Colleae of

Surgeons. 522 U.S. 156, 188 (1997) r United States v. Raines. 362

U.S. 17, 21 (1960) ; Rescue Armv v. Municioal Court. 331 U.S.

549, 568 (1947) ; Ashwander v. TVA. 2 97 U.S. 2 88. 347 (1936)

(Brandeis, J . . concurring); Contractors Assoc. v. City of 

Philadelphi a . 6 F\3d 990, 996 (3d Cir. 1993); O'Keefe v. Passaic

8



Valiev Water Commission. 132 N. J. 234, 240-41 (1993) ("As we

have previously explained, courts should not reach 

constitutional questions unless necessary to the disposition of 

the litigation"); Donadio v. Cunningham. 58 N . J . 309, 325-26

(1971); State v. Zucconi. 50 N.J. 361, 364 (1967); State v. 

Salerno, 2 7 N.J, 361, 364 (1958); Grobart v. Grobart, 5 N.J.

161, 165 (1950) .

In fact, the principle that courts should decide only those 

questions necessary to a decision is so well established that it 

barely receives specific mention in the vast majority of 

decisions in which the principle is invoked. Nevertheless, its 

influence is apparent in cases emanating from the full range of 

courts, deciding the full range of issues, including in those 

cases involving strict scrutiny of statutes relying on racial 

classifications. See, e . g . . Bush v. Vera, supra. 517 U . S . at

977 (assuming without deciding that the proffered government 

interest in complying with the Voting Rights Act is compelling 

and deciding the case on the narrowly tailored prong instead); 

Shaw v. Hunt, supra. 517 U. S . at 911 ("Here, once again we do

not reach [the question whether compliance with the Voting 

Rights Act is a compelling interest] because we find that 

creating an additional majority-black district . . .  is not a 

remedy narrowly tailored to the State's professed interest . . .

• Wygant. 476 U . S . at 278 (Court "need not consider the

9



question [of compelling interest] since we conclude below that

the layoff provision was not a legally appropriate means of 

achieving even a compelling purpose"); Contractors Assoc, v. 

City of Philadelphia. 91 F_̂ 3d 586, 605 (3d Cir. 1996) (not

necessary to decide close question of whether compelling

interest was established for remedial public contracting

program, because program was "clearly not narrowly tailored to 

remedy" the alleged discrimination) ; Eisenbercr v. Montgomery

County Public Schools. 197 JjL_3d 123, 131 (4th Cir. 1999)

(leaving "unresolved" the whether diversity is a compelling 

interest and proceeding instead "to the second part f i . e .,

narrow tailoring prong] of the strict scrutiny analysis"), cert. 

den, sub nom. Montgomery County Public Schools v. Eisenberg, 120 

S. Ct. 1420 (2000); Tuttle v. Arlington County School Board, 195

F\3d 698, 705 (4th Cir. 1999), cert, dism'd sub nom._Arlington

County School Board v. Tuttle. 120 S . Ct. 1552 (2000) (assuming,

without deciding, that diversity may be a compelling

governmental interest but concluding that policy was not 

narrowly tailored); Williams v. Babbitt, 115 Fb_3d 657, 665 (9th

Cir. 1997) (assuming, without deciding, that Congress has a 

compelling interest in assisting Native Americans economically, 

but finding that statute was not narrowly tailored to further

that interest) ; Hiller v. County of Suffolk, 977 FT_Supp . 202,

206 (E.D.N.Y. 1997) (finding that "it is not necessary for the

10



Court to find a showing of past discrimination sufficient to

satisfy a compelling governmental interest because the Cadet

program is not narrowly tailored"); Concrete General, Inc.__v^

Washington Suburban Sanitary Commission, 779 F . Supp. 370 (D.

Md. 1991) (holding program unconstitutional on basis of narrow 

tailoring where there were disputed issues of fact as to 

compelling interest). But see Johnson v. Board of Regents, 2000 

U.S. Dist. LEXIS 10541 (D.S. Ga. July 24, 2000), at *29, *38

(where court found defendant's articulation of the purported 

compelling interest in "diversity" to be based upon "syllogism 

and speculation," it would decide compelling interest question 

because narrow tailoring to an interest so formless and 

malleable - unlike a concrete interest in remedying past 

discrimination - was not possible).

A necessary corollary of the principle of "strict

necessity" in deciding constitutional questions, Rescue_Army ,

331 U.S. at 568, is that a court should decide no greater number 

of constitutional questions than is necessary to support its

judgment. See American Mfrs. Mut. Ins.__Co . v .__Sullivan, 526

U.S. 40, 62 (1999) (Ginsburg, J^, concurring) (although judicial

restraint is "ordinarily invoked to avoid deciding a 

constitutional question in lieu of a less tall ground for 

decision . . . [it also counsels that] [w] hen a case presents

two constitutional questions, one of which disposes of the

11



entire case and the other of which does not, resolution of the

case-dispositive question should suffice."). The principle of 

reaching only those constitutional questions necessary to a 

judgment recognizes that any constitutional decision forecloses 

the political branches from addressing the issues raised through 

the legislative processes. See FCC v. Beach Communications. 

Inc.. 508 U , S . 307, 314 (1993) (judicial restraint presupposes 

that "even improvident decisions will eventually be rectified by 

the democratic process and that judicial intervention is 

generally unwarranted no matter how unwisely we may think a 

political branch has acted."); Rescue Army, 331 U.S. at 570-71 

(judicial restraint reflects an understanding of the "inherent 

limitations of the judicial process" and the necessity, if 

government is to function properly, that each branch "keep 

within its power, including the courts").

In this case, there was no necessity whatsoever for the 

trial court to reach the question of whether the Set-Aside Act, 

as implemented by the CRDA, meets the compelling interest 

component of strict scrutiny, since the trial court had 

determined that the Act was not narrowly tailored. See Lu_

Feriozzi Concrete Co.. Inc, v. Casino Reinvestment_Development

Authority et al. . No. ATL-L-2003-99 (Nov. 5, 1999) , Slip Op. 28- 

34. As we have indicated, most courts deciding cases involving 

race-conscious governmental action have focused initially upon

12



the narrow tailoring prong of the strict scrutiny inquiry and

have gone no further if they conclude that a program or action 

is not narrowly tailored. Because it focuses upon legislative 

means - i,e .. the mechanics and operational aspects of a program 

- rather than the legislature's authority to act, this approach 

is consistent with the judiciary's duty to pass upon the 

constitutionality of acts of the legislature only with "great 

gravity and delicacy." Adkins v. Children's Hospital. 261 U.S. 

394, 544 (1923) . Cf. Rescue Army. 331 U . S . at 571 (courts

should avoid unnecessary "judicial review of government action 

for constitutionality", in part, because of the "finality" of 

the consequences of a finding of unconstitutionality).

Thus, once the trial court decided the narrow tailoring 

issue, its observations regarding the state interest served by 

the Act unnecessarily compromised the ability of the political 

branches to reexamine the Set-Aside Act in light of the trial 

court's narrow tailoring ruling and, perhaps, appropriately 

narrow it. Cf. Beach Communications. 508 U . S . at 316 ("the 

legislature must be allowed leeway to approach a perceived 

problem incrementally"). Accordingly, amicus curiae urges this 

Court to find that, in light of considerations of judicial 

restraint - which are at their strongest where, as here, 

important constitutional issues are at stake - the trial court 

erred in reaching the question, unnecessary to its decision, of

13



whether the Set-Aside Act, as implemented by the CRD A serves a

state compelling interest.2

2 Should this Court nevertheless reach the compelling interest 
issue, amicus curiae urges the Court to reverse the trial court 
on the basis of the arguments presented in the CRDA's brief and 
because, as set forth below, the trial court erred in 
determining that prior discrimination by the CRDA rather than by 
the State of New Jersey was necessary to establish a compelling 
state interest in remedying past discrimination.

14



POINT II
THE STATE OF NEW JERSEY, NOT THE CRDA, IS 
THE RELEVANT GOVERNMENTAL UNIT FOR PURPOSES 
OF DETERMINING WHETHER THE CRDA'S 
IMPLEMENTATION OF THE NEW JERSEY SET-ASIDE 
ACT SERVES A COMPELLING STATE INTEREST.

Under Croson v. City of Richmond. 48 8 U . S . 469 (1989), a

state or local government may take action to "rectify the 

effects of identified discrimination within its jurisdiction." 

488 U. S . at 509. Before it may do so, however, that government 

must demonstrate that it has engaged in identifiable 

discrimination or has been a passive participant in such

discrimination. See id. at 492-93, 499-500. In other words,

the government may not rely upon evidence of background,

societal discrimination to justify an affirmative action 

program, but only upon its own history of involvement with 

discrimination. As the Supreme Court held in Wygant, there must 

be "some showing of prior discrimination by the governmental 

unit involved before . . . [the] limited use of racial

classifications [is justified] to remedy such discrimination." 

476 U.S. at 274 (emphasis added) .

In Hopwood v. State of Texas, 78 F\_3d 932 (5th Cir. 1996) ,

the United States Court of Appeals for the Fifth Circuit relied 

upon this language to hold that the University of Texas Law 

School could only implement a remedial action program in law 

school admissions if it could establish its own history of

15



discrimination, and that, in doing so, the Law School could not

rely on evidence of discrimination by other state actors. See 

78 F\3d at 949-52. In this case, the lower court relied on 

Hopwood to hold that the CRDA' s implementation of New Jersey's 

Set-Aside Act could only be justified by a showing of 

discrimination by the CRDA. See Slip Op. at 19-25. Amicus 

curiae respectfully suggests that the trial court's reliance on 

Hopwood was misplaced and that the correct governmental unit for 

purposes of analyzing the CRDA's implementation of the Act is 

the State of New Jersey, and not the CRDA alone.3

In particular, Hopwood is inapposite because the remedial 

program at issue in Hopwood was a University of Texas Law School 

program, and not a State of Texas or a University of Texas 

program. See Hopwood. 78 FL3d at 954. Specifically, the Fifth

Circuit noted that the Law School "operates as a functionally 

separate unit" within the University of Texas System, that it 

"maintains its own separate admissions programs," and that it

3 Amicus curiae recognizes that there is some dispute as to which 
statutory provisions govern the CRDA's set-aside program - i , e ..., 
New Jersey's Set-Aside Act or the set-aside provisions of the 
Casino Control Act, N.J.S.A. 5:12-181 et seg. The trial court 
ruled on both sets of statutory provisions. See Slip Op. at 23, 
25, 33 n .2. Nonetheless, the record is clear that, in practice, 
the CRDA has disregarded the Casino Control Act's minority set- 
aside provisions. Accordingly, the discussion set forth herein 
addresses the CRDA's implementation of the New Jersey Set-Aside 
Act; if, as amicus curiae believes, the CRDA's program is 
authorized by that Act, it is irrelevant whether or not it is 
also authorized by the Casino Control Act.

16



hires its own faculty and administrative personnel. See icL at

951. Although the Law School argued that its racial preference 

program was required by a "State of Texas Plan", see id. at 954, 

the court found as a factual matter that the Law School's 

program was "self-initiated," and that it was formulated a 

decade after the "State of Texas Plan" on which the Law School 

relied. See id. Thus, the Fifth Circuit rejected the notion 

that the Law School was required or authorized by any larger 

entity, such as the University of Texas, or the State, to 

implement its remedial action program.

In this case, by contrast, the CRDA acts pursuant to a 

state-wide program, administered by the State Department of 

Treasury, see N .J .S .A . 52:32-31, rather than under a program of

its own creation. N . J . S . A . 52:32-17 et_seq... establishes as

"goals" for all state "contracting agencies" that they shall 

"award at least 15% of their contracts for small businesses, at 

least 7% of their contracts for minority businesses and at least 

3% of their contracts for female businesses." N . J . S . A.,. 52:32- 

21(a). The CRDA is specifically identified as a "contracting 

agency" subject to N . J . S . A . 52:32-17 et— seq . by N . CUAnCd. 17:14- 

1.2. Thus, the State, not the CRDA, sets the program goals and 

scope. See N.J.S .A. 52:32-19 through 52:32-21. The State also 

establishes the criteria of eligibility for minority businesses, 

see id. : N.J.A.C. 17:14-2.1; the certification and registration

17



procedures for minority businesses, see N.J.A.C. 17:14-3.1; the

process by which primary contractors may document their good 

faith efforts to comply with the goals in locating

subcontractors, see N.J.A.C. 17:14-4.3; and the procedures for 

state agencies to document and report their compliance with the 

program to the Department of Treasury, see N .J .S .A. 52:32-22.1; 

N .J .A .C . 17:14-4.1. As a consequence, the relevant governmental

unit for purposes of evaluating the State program is the State 

of New Jersey. Accordingly, the CRDA - like every other state 

agency mandated to comply with the program under N .J .A .C . 17:14-

1.2 - is entitled to rely on the State's findings of

discrimination in public contracting contained in the Final.

Report of the State of New Jersey's Governor's Commission_on

Discrimination in Public Works Procurement and__Const ruction

Contracts (1993) as justification for its implementation of the 

state program.

Indeed, to hold otherwise would impose an impossible burden 

on state agencies that must comply with the State program; it 

would also be inconsistent with Croson's recognition that state 

and local governments may take remedial action within their 

jurisdictions. See Croson, 488 U .S . at 504 ("the States and 

their subdivisions may take remedial action when they possess 

evidence that their own spending practices are exacerbating a 

pattern of prior discrimination"). Thus, Croson did not hold

18



that every agency of the City of Richmond was required to

demonstrate a history of discrimination in order to act pursuant 

to a city remedial program, but only that the City itself had 

failed to develop the requisite factual record of its own 

behavior. The majority of courts struggling with Croson's 

application in the public contracting context have recognized 

that, to the extent that a city or state agency acts pursuant to 

a city or state-wide program, the relevant governmental unit for 

purposes of evaluating whether the program is justified is the 

city or state. See. e . g . . Associated General Contractors v. 

Drabik. 214 Fh_3d 730 (6th Cir. 2000) (in challenge to State's 

program of preferences in state construction contracts, naming 

directors of two state agencies as defendants, relevant 

governmental unit for purposes of evaluating constitutionality 

of program was state); Monterey Mechanical Co. v. Wilson, 125 

F\.3d 702, 713-15 (9th Cir. 1997) (relevant governmental unit for 

determining constitutionality of state university's 

implementation of race-based contracting program was university 

or state) .4 See also Associated General Contractors v._City and

4 Of course, in many cases, the question of the relevant 
governmental unit does not arise because the case is brought as 
a challenge to the city or state-wide program itself, with the 
city or state named as a defendant. In those cases, the courts 
generally have accepted without inquiry that the relevant 
governmental unit is the named city or state defendant. See,,
e , a . . Contractors Assoc, v. City of Philadelphia, 91 F\.3d 586 
(3d Cir. 1996) (City of Philadelphia relevant unit of analysis

19



County of San Francisco, 813 F\_2d 922, 930 n.13 (9th Cir. 1987)

(pre-Croson decision finding that "if a particular department is 

found to have acted in a racially discriminatory fashion, the 

city is not limited in its remedies to activities within that 

department alone") . Cf. F. Buddie Contracting. Ltd. V. 

Cuvahonga Community College Dist., 31 F. Supp.2d 571, 580 (N.D. 

Ohio 1998) (holding that community college was relevant 

governmental unit where college implemented state-wide remedial 

program in contracting, but recognizing that the question of 

which unit - the State or the college - was the correct one was 

"not entirely clear" and that if the state statute were 

supported by sufficient evidence of prior discrimination, the 

college's actions might thereby be saved).

Only where an agency acts on its own initiative have courts 

looked to the agency itself as the governmental unit that must 

demonstrate a history of discrimination that will satisfy

in evaluating constitutionality of remedial program in city 
contracting); Concrete Works of Colorado. Inc, v. Denver. 36 
Fh_3d 1513 (10th Cir. 1994) (City of Denver relevant governmental
unit for purposes of evaluating city's minority contractor 
preference ordinance); O'Donnell Const. Co. v. District of 
Columbia. 963 Fh.2d 420 (D.C. Cir. 1992) (District of Columbia 
relevant actor for purposes of evaluating constitutionality of 
District's minority preference program in contracting); 
Associated General Contractors v. Coalition for Economic Equity. 
950 F^2d 1041 (9th Cir. 1991) (City of San Francisco relevant 
unit in evaluating city ordinance giving bid preference to 
minority businesses); Engineering Contractors Assoc. v.
Metropolitan Dade County. 943 F . Supp. 1546 (S.D. Fla. 1996)

20



Croson. See. e.a.. Phillies & Jordan, Inc. v. Watts. 13

F . Supp.2d 1308 (N.D. Fla. 1998) (Florida Department of

Transportation relevant gove rnment a1 unit for purposes of

evaluating Department's affirmative action program in

contracting, where program was created by the Department and

relied on findings of discrimination specific to Department); 

Houston Contractors Assoc, v. Metropolitan Transit Auth., 993 F .

Supp. 545 (S.D. Tex. 1997) (Transit Authority relevant

governmental unit for purposes of evaluating constitutionality 

of Authority's remedial program, where court found that

Authority's program was not required by state law) ; Concrete 

General. Inc, v. Washington Suburban Sanitary Commission, 77 9 F .

Supp. 370 (D. Md. 1991) (suburban sanitary commission relevant

governmental unit for purposes of evaluating commission's

minority set-aside program in contracting, where program was

initiated by commission) . The same is true in the context of 

affirmative action programs in hiring, promoting, or university 

admissions, like the one at issue in Hopwood. See, e .g . ,

Brunet v. City of Columbus. 1 FT. 3d 390, 404 (6th Cir. 1993) 

(Columbus Fire Department relevant unit for purposes of

evaluating Fire Department's affirmative action plan, where plan 

was limited to fire department); Kane v. Freeman. 1997 WL 158315

(county relevant governmental unit for purposes of evaluating 
county-wide affirmative action program in contracting).

21



(M.D. Fla. 1997) (Tampa Police Department relevant governmental 

unit for purposes of evaluating department's affirmative action 

policy in hiring and promotions, where policy was limited to 

police department).

The inappropriateness of requiring individual state or city 

agencies to demonstrate their own history of discrimination 

before they may lawfully implement a state or city-wide remedial 

program is apparent if one considers the converse situation, in 

which a State seeks not to remedy a demonstrated history of 

discrimination, but to avoid liability for it. If the trial 

court's analysis were correct, the State could avoid its 

constitutional responsibilities entirely by creating a new set 

of sub-divisions and departments that, by definition, would have 

no prior history of discrimination. Because this would rob the 

Equal Protection Clause of all meaning, it has become well 

established that states may not follow such a course in order to 

avoid liability under the Fourteenth Amendment. See. e .g .. Hall 

v. St. Helena Parish School Bd.. 197 F . Supp. 649, 658 (state 

may not "evade its constitutional responsibility by carve-outs 

of small units"), aff'd 368 U. S . 515 (1962) (per curiam); 

Gautreaux c. Chicago Hous. Auth. , 503 F\.2d 930, 934 (7th Cir. 

1974) ("[t]he equal protection clause speaks to the state, and 

the state cannot escape its obligations under that clause by 

delegating some of its governmental functions to local units");

22



Haney v. County Bd. of Educ. . 410 F\_2d 920, 925 (8th Cir. 1969)

("Political subdivisions of the state are mere lines of 

convenience for exercising divided governmental

responsibilities. They cannot serve to deny federal rights."); 

Poindexter v. Louisiana Financial Assistance Comm'n. 258 F . 

Supp. 158, 166 (E.D. La. 1966); Allen v. County School Bd. , 2 07

F . Supp. 349, 354 (E.D. Va. 1962) . It follows, legally and

logically, that a State that establishes a history of

discrimination in public contracting may implement a narrowly 

tailored remedial action program, and require its various 

agencies engaged in public contracting to comply with the 

program's requirements, regardless of whether each and every

department can demonstrate its own history of discrimination. 

See Croson. 488 U . S . at 509 ("Nothing we say today precludes a

state or local entity from taking action to rectify the effects 

of identified discrimination within its jurisdiction.").

In sum, to the extent that the CRDA acts pursuant to

N. J. S . A. 52:32-17 et seq. . the correct governmental unit for 

purposes of evaluating whether its remedial actions are

justified by a compelling state interest is the State of New 

Jersey. The State of New Jersey is the jurisdiction that seeks 

to remedy discrimination in its contracting practices through 

the Set-Aside Act, and the CRDA is but one of the agencies 

through which the State seeks to accomplish that purpose. Thus,

23



whether the CRDA's implementation of the Set-Aside Act meets the

compelling interest prong of strict scrutiny turns not on 

whether the CRDA has a history of discrimination in contracting, 

but on whether the State of New Jersey does. As documented in 

the Final Report of the State of New Jersey's Governor's Study 

Commission on Discrimination in Public Works Procurement and 

Construction Contracts, the State of New Jersey has such an 

unfortunate history. Accordingly, amicus curiae respectfully 

submits that the trial court's judgment must be reversed on the 

basis that the trial court chose the wrong governmental unit for 

purposes of evaluating whether the Set-Aside Act serves a 

compelling state interest.

24



CONCLUSION
As set forth above, amicus curiae urges this Court to hold 

that the trial court erred when it reached a constitutional 

question unnecessary to its decision, namely whether the CRDA's 

implementation of the Set-Aside Act further a compelling state 

interest, after it determined that the Set-Aside Act was not 

narrowly tailored. Should the issue be reached, amicus curiae 

urges this Court to hold that the trial court erred when it

selected the CRD A rather than the State of New Jersey as the

relevant governmental unit for purposes of evaluating whether

the CRDA's implementation of the Set-Aside Act furthers a 

compelling state interest.

Respectfully submitted,

GIBBONS, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE 
A Professional Corporation

25



CERTIFICATE OF SERVICE

I hereby certify that two copies of the brief of amicus 

curiae were served on each of the parties by depositing same for 

overnight delivery with Federal Express, postage prepaid, on 

August 8, 2000, addressed to the following:

Salvatore Perillo, Esq.
Perskie, Nehmad & Perillo, P.C. 
1125 Atlantic Avenue 
Suite 711
Atlantic City, N.J. 08401

Patrick McAuley 
Connell Foley LLP 
85 Livingston Avenue 
Roseland, New Jersey 07068-1765

Jessica A. Roth, Esq.

Dated: August 8, 2000