Hi-Voltage Wire Works, Inc. v. City of San Jose Brief of Amicus Curiae in Support of Appellants

    IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
NO. S0803I8

HI-VOLT AGE WIRE WORKS, INC., et al.,
Respondents,

v.

CITY OF SAN JOSE, et al.,
Appellants.

On Appeal from the Decision of the Sixth Appellate District
Court of Appeal 

No. HO 18407

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. IN SUPPORT OF

APPELLANTS

Of counsel:

Elaine R. Jones, Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Melissa Woods 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, N Y 10013 
(212) 965-2200

Pamela S. Karlan Erica J. Teasley (Bar No. 178498)
Stanford University School NAACP LEGAL DEFENSE AND

of Law Educational Fund, Inc.
559 Nathan Abbott Way 
Stanford, CA 94305-8610 
(650) 725-4851

315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

Attorneys for Amicus Curiae



IN THE SUPREME COURT OF THE STATE OF CA!£fFblT^fAr; D
NO. S080318

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  39 D E C  29 p 2 * .  4 1

HI-VOLT AGE WIRE WORKS, INC., et al.,surHEM t COURT
ResponifiSts^ELES.

v.

CITY OF SAN JOSE, et al.,
Appellants.

On Appeal from the Decision of the Sixth Appellate District
Court of Appeal 

No. HO 18407

BRIEF OF AMICUS CURIAE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. IN SUPPORT OF

APPELLANTS

Of counsel:

Elaine R. Jones, Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Melissa Woods 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

Pamela S. Karlan Erica J. Teasley (Bar No. 178498)
Stanford University School NAACP Legal Defense and

of Law Educational Fund, Inc.
559 Nathan Abbott Way 
Stanford, CA 94305-8610 
(650) 725-4851

315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

Attorneys for Amicus Curiae



TABLE OF CONTENTS

I. INTRODUCTION............................................................................  1

II. INTEREST OF AMICUS CURIAE ............................................  2

III. ARGUMENT ..................................................   3

A. This Court Should Construe the State 
Constitutional Provision to Avoid Conflict with
the Federal Constitution.............................   3

B. The Court of Appeal’s Construction of
Proposition 209 Creates a Serious, and Avoidable, 
Constitutional D ifficulty................................................. 6

IV. CONCLUSION ............................................................................ 9

i



TABLE OF AUTHORITIES

CASES Page

Bob Jones University v. United States,
461 U.S. 574, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983) . . . .  6

Burton v. Wilmington Parking Authority,
365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1 9 6 1 )............... 8

Bush v. Vera,
517 U.S. 952, 116 S. Ct. 1941, 135 L. Ed. 2d 248 (1996) . . .  5

Carter v. Gallagher,
452 F.2d 315 (8th Cir. 1971), cert, denied,
406 U.S. 950, 92 S. Ct. 2045, 32 L. Ed. 2d 338 (1 9 7 2 )........  7

City o f  Richmond v. J.A. Croson Co.,
488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) . . . .  8

Coalition fo r  Economic Equity v. Wilson,
122 F.3d 692 (9th Cir. 1997) ................... ........................... 1,5

Freeman v. Pitts,
503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992) . . .  7

Green v. School Board o f New Kent County,
391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1 9 6 8 )........  6

Hi-Voltage Wire Works, Inc. v. City o f San Jose,
72 Cal. App. 4th 600, 84 Cal. Rptr. 2d 885
(6th Dist. Ct. App. 1999).................................................. Passim

International Brotherhood o f Teamsters v. United States,
431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1 9 7 7 )........  7

ii



Johnson v. Transportation Agency, Santa Clara County,
480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) . . . .  8

Miller v. Municipal Court,
22 Cal. 2d 818, 142 P.2d 297 (1943) ......................................  4

North Carolina State Board o f Education v. Swann,
402 U.S. 43, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1 9 7 1 )..........  5

Norwood v. Harrison,
413 U.S. 455 (1973) .................................................................  8

W.H. Scott Construction Co., Inc. v. City o f Jackson,
1999 U.S. App. LEXIS 33621 *21 (5th Cir. Dec. 23, 1999) . 9

Welfare Rights Org. v. Crisan,
33 Cal. 3d 766, 661 P.2d 1073, 190 Cal. Rptr. 919 (1983) .. 4

CONSTITUTIONAL PROVISIONS Page

Cal. Const. Art. I, § 3 1 .................................................................  1, 5, 6

U.S. Const. Art. VI, § 2 .......................................................................  4

iii



I. INTRODUCTION

In this case, the Court of Appeal construed Cal. Const. Art. I, § 31 

(“Proposition 209") to forbid the City of San Jose (the “City”) from 

implementing a targeted outreach program designed to ensure nondis­

crimination in city contracting. The Court of Appeal acknowledged that 

its decision might place “governments seeking to eradicate discrimina­

tion in a no-win situation,” Hi-Voltage Wire Works, Inc. v. City o f  San 

Jose, 72 Cal. App. 4th 600, 608, 84 Cal. Rptr. 2d 885, 891 (6th Dist. Ct. 

App. 1999). In fact, the result of this decision is far worse: it bars state 

actors from complying with their responsibilities under the Fourteenth 

Amendment to the U.S. Constitution. The Court of Appeal’s decision 

will prevent governmental actors from remedying their own prior acts 

of unconstitutional or illegal discrimination and from avoiding the 

commission of new acts of discrimination.

The critical error in the Court of Appeal’s analysis was its failure 

to construe Proposition 209 to avoid constitutional difficulty under the 

federal Constitution. While it is true that state constitutional provisions 

can be construed to give “greater protection” to identified groups than 

the federal Constitution provides, Hi-Voltage, 72 Cal. App. 4th at 614, 

84 Cal. Rptr. 2d at 894 (citing Coalition fo r  Economic Equity v. Wilson, 

122 F.3d 692, 709 n.18 (9th Cir. 1997)), the expansion of state-created 

constitutional rights cannot produce the contraction of federally 

recognized constitutional rights. That, however, is what has happened 

in this case: by conferring on Hi-Voltage a right not to be required to 

document its nondiscrimination in order to bid on city contracts — and

1



it is Hi-Voltage’s interest in not having to prove its nondiscrimination 

that creates the standing-conferring injury — the Court of Appeal’s 

decision creates a serious danger that the City and its contractors will 

perpetuate the effects of prior unconstitutional or i llegal discrimination 

against Minority Business Enterprises (“MBEs”) and Women Business 

Enterprises (“WBEs”) and will commit new acts of unconstitutional or 

illegal discrimination.

II. INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) 

is a non-profit corporation established under the laws of the State of 

New York that has prosecuted numerous civil rights cases on behalf of 

African Americans and others seeking vindication of their civil rights.

The long involvement of LDF in efforts to enforce civil rights 

laws gives us a special interest in one of the major issues raised by this 

appeal: whether the Court of Appeal’s construction of Proposition 209 

impermissibly interferes with the City of San Jose’s federal Constitu­

tional obligations to remedy past discrimination that the City identified 

in the unchallenged findings of its disparity study, and to prevent future 

discrimination in its contracting programs. Past discrimination has been 

addressed both through litigation and by voluntary affirmative action 

programs adopted by States and municipalities, which the United States 

Supreme Court has recognized to have a fundamental interest in 

eradicating discrimination. LDF believes that it is essential as a matter 

of policy, as well as a matter of applicable legal principles, that such 

voluntary programs be permitted to continue.

2



To hold otherwise would constrain the ability of state and local 

governments to eliminate the effects of their prior discriminatory 

conduct in a manner that addresses the needs of their constituents. The 

case now before this Court presents a particularly compelling example 

of voluntary efforts that should not be held to fall within the proscription 

of Proposition 209. San Jose’s “Documentation of Outreach” program 

uses the most modest means of remedying past discrimination — 

information and outreach to expand opportunity. Neither the language 

of the City ordinance, nor the actions of the City officials, require 

contractors to award subcontracts to firms that submit bids, even if  those 

firms qualify as Minority Business Enterprises or Women Business 

Enterprises, so long as the decision not to do so does not rest on grounds 

of racial discrimination. The minimal prerequisite of o utreach to these 

potential subcontractors should, therefore, not be interpreted as violating 

Proposition 209. As we show below, such a reading of Proposition 209 

would conflict with federal law.

III. ARGUMENT

A. This Court Should Construe the State Constitutional Provi­

sion to Avoid Conflict with the Federal Constitution

It is a fundamental principle of this Court’s approach to statutory 

construction that “[i]f a statute is susceptible of two constructions, one 

of which will render it constitutional and the other unconstitutional in 

whole or in part, or raise serious and doubtful constitutional questions, 

the court will adopt the construction which, without doing violence to 

the reasonable meaning of the language used, will render it valid in its

3



entirety, or free from doubt as to its constitutionality, even though the 

other construction is equally reasonable.” Miller v. Municipal Court, 22 

Cal. 2d 818, 828, 142 P.2d 297, 303 (1943); see also Welfare Rights 

Org. v. Crisan, 33 Cal. 3d 766, 772, 190 Cal. Rptr. 919, 923, 661 P.2d 

1073, 1077 (1983) (stating “the rule that courts are to construe statutes 

in a manner which avoids constitutional difficulties”). So, too, when it 

comes to construing provisions of the California Constitution with 

regard to the State’s obligations under the Fourteenth Amendment. In 

interpreting the California Constitution, if a constitutional provision is 

susceptible of two constructions, one of which would raise serious 

doubts under the Federal Constitution, this Court should adopt the 

construction that avoids the constitutional difficulties. The Supremacy 

Clause of the Federal Constitution, U.S. Const. Art. VI, § 2, imposes 

this responsibility on state court judges with respect even to the 

adjudication of state constitutional questions.

The Court of Appeal failed to apply this fundamental canon of 

constitutional construction. While it is certainly “not within the 

province of [the] court[s] to rewrite a law or alter its boundaries to 

embrace an act or policy not reflected in its plain language,” Hi- Voltage, 

72 Cal. App. 4th at 608, 84 Cal. Rptr. 2d at 891, it is decidedly within the 

courts’ province, when construing language that they recognize does not 

provide a “straightforward” answer to the question presented, 72 Cal. 

App. 4th at 608, 84 Cal. Rptr. 2d at 890, to interpret that language to 

avoid constitutional difficulty. The magnitude of the Court of Appeal’s 

error is shown in that portion of its opinion immediately following its

4



discussion of the City’s argument that article I, section 31 (Proposition

209) should be construed to permit race-conscious action to the same

extent as does the Fourteenth Amendment to the federal Constitution

and Titles VI and VII of the Civil Rights Act of 1964:

[AJrticle I, section 31, does not permit discrimination 
whenever federal standards are met; all discriminatory 
treatment based on the identified categories is prohibited.
In this respect the state constitutional provision ‘provides 
greater protection to members of the gender and races 
otherwise burdened by the preference.’ (Coalition for 
Economic Equity v. Wilson, supra, 122 F.3d at p. 709, fn.
18.) For the same reason, whether the Program is justified 
because it is narrowly tailored to serve a compelling state 
interest is irrelevant [to the Program’s constitutionality].

Hi-Voltage, 72 Cal. App. 4th at 613-14, 84 Cal. Rptr. 2d at 894.

The “narrowly tailored” and “compelling state interest” language 

comes from the United States Supreme Court’s decisions describing 

when a governmental entity may act in a race-conscious fashion. The 

Court has unequivocally endorsed such action only when a sufficient 

demonstration can be made that the governmental entity very likely 

discriminated on the basis of race in the past so that it is essentially 

required to take race into account. See, e.g., Bush v. Vera, 517 U.S. 952, 

116 S. Ct. 1941,135 L. Ed. 2d248 (1996) (holding that compliance with 

the Voting Rights Act of 1965 is a sufficiently compelling state interest 

that it may justify a narrowly tailored race-conscious remedy); North 

Carolina State Board o f Education v. Swann, 402 U.S. 43, 91 S. Ct. 

1284, 28 L. Ed. 2d 586 (1971) (holding that the need to dismantle 

racially segregated schools may require race-conscious pupil assign­

5



ments and, therefore, that state law may not bar such assignments). 

Thus, to say that the presence of a “compelling state interest” cannot 

justify the Program is to place Proposition 209 on a collision course with 

the federal Constitution. Any reasonable construction that can avoid 

this result should be adopted.

B. The Court of Appeal’s Construction of Proposition 209

Creates a Serious, and Avoidable, Constitutional Difficulty

The Court of Appeal construed Proposition 209 to forbid the City 

of San Jose’s “Documentation of Outreach” program, despite recogniz­

ing that “the purpose of the Program -  to eradicate and prevent 

discrimination in public projects -  clearly comports with the constitu­

tional prohibition [of Article I, section 31].” Hi-Voltage, 72 Cal. App. 

4th at 608, 84 Cal. Rptr. 2d at 890. This holding, in light of the City’s 

conceded administrative conclusions concerning the actual historic 

discrimination against MBEs and WBEs, see id., raises severe problems 

under the Federal Constitution’s Equal Protection Clause if Proposition 

209 is construed to prohibit the narrowly-tailored and factually effective 

remedy of minority outreach.

The Fourteenth Amendment imposes on public entities an 

affirmative obligation to eliminate “root and branch” the lingering 

vestiges of prior unconstitutional or illegal discrimination and to avoid 

future discrimination. Green v. School Board o f  New Kent County, 391 

U.S. 430, 437-38, 88 S. Ct. 1689, 1693, 20 L. Ed. 2d 716, 723 (1968). 

In Bob Jones University v. United States, 461 U.S. 574, 604, 103 S. Ct. 

2017, 2035, 76 L. Ed. 2d 157, 181 (1983), the United States Supreme

6



Court described that obligation in the strongest terms: “The Govern­

ment has a fundamental, overriding interest in eradicating racial 

discrimination” in areas it has historically infected.

That the lingering vestiges that require proactive measures can 

include practices such as recruitment of minority applicants is clearly 

established. For example, in International Brotherhood o f Teamsters v. 

United States, 431 U.S. 324, 365-66, 97 S. Ct. 1843, 1869, 52 L. Ed. 2d 

396, 434 (1977), the United States Supreme Court noted that “the 

manner in which [an employer] publicizes vacancies, his recruitment 

techniques, [and] his responses to casual or tentative inquiries” may 

“more subtly but just as clearly” communicate “[t]he same message” as 

“a sign reading ‘Whites Only.’” This illegal discrimination can best be 

combatted by affirmative outreach to groups that were previously 

deterred. See, e.g., Carter v. Gallagher, 452 F.2d 315, 319 (8th Cir. 

1971) (ordering, inter alia, the targeted use of media calculated to reach 

the minority community, as part of a remedial decree), cert, denied, 406 

U.S. 950, 92 S. Ct. 2045, 32 L. Ed. 2d 338 (1972). The Court has also 

explicitly held that “active steps to recruit qualified [minority] appli­

cants” are relevant to the question whether a proven discriminator has 

completely eliminated the lingering vestiges of prior discrimination. 

Freeman v. Pitts, 503 U.S. 467, 481, 112 S. Ct. 1430, 1441, 118 L. Ed. 

2d 108, 128 (1992).

In this case, respondents “do not question the statistical underpin­

nings of the City’s conclusion that the Program is necessary to eliminate 

the disparity in subcontracting opportunities between MBE/WBE and

7



non-MBE/WBE businesses.” Hi-Voltage, 72 Cal. App. 4th at 607, 84 

Cal. Rptr. 2d at 890. This disparity creates a powerful inference of the 

existence of discrimination for which the City is ultimately responsible. 

See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 

616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987); Burton v. Wilmington 

Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). 

As the United States Supreme Court recognized in City o f Richmond v. 

J.A. Croson Co., 488 U.S. 469, 492, 109 S. Ct. 706, 721, 102 L. Ed. 2d 

854, 881 (1989):

[I]f the city could show that it had essentially become a 
“passive participant” in a system of racial exclusion 
practiced by elements of the local construction industry, we 
think it clear that the city could take affirmative steps to 
dismantle such a system. It is beyond dispute that any 
public entity, state or federal, has a compelling interest in 
assuring that public dollars, drawn from the tax contribu­
tions of all citizens, do not serve to finance the evil of 
private prejudice. Cf. Norwood v. Harrison, 413 U.S.455,
465 (1973) (“Racial discrimination in state-operated 
schools is barred by the Constitution and [i]t is also 
axiomatic that a state may not induce, encourage or 
promote private persons to accomplish what it is constitu­
tionally forbidden to accomplish”).

The Court of Appeal’s construction of Proposition 209 

impermissibly interferes with the City’s federal constitutional obligation 

to take measures reasonably calculated both to remedy the past 

discrimination implied in its unchallenged factual findings and to 

prevent future discrimination along the same lines. Requiring city 

contractors to document the measures they have taken (to assure that no

8



message that “minorities need not apply” for subcontracting opportuni­

ties is communicated or understood in the bid process) is reasonably 

calculated to discharge those federal constitutional obligations. At the 

same time, such a practice does not actually disadvantage any non- 

MBE/WBE potential subcontractors: every contracting opportunity 

remains completely open to them.* Thus, this Court should construe 

Proposition 209 in a fashion that permits the City to meet its federal 

constitutional and statutory obligations.

IV. CONCLUSION

For the foregoing reasons, amicus curiae respectfully requests 

that this Court reverse the Court of Appeal’s judgment and enter 

judgment for Defendants and Appellants City of San Jose and Susan 

Hummer.

*On its face, San Jose’s ordinance treats MBEAVBE and non- 
MBE/WBE prime contractors identically: all prime contractors must 
demonstrate either that they meet the MBEAVBE ^ c o n tra c to r  
participation standard or that they have met the MBE/WBE 
^ co n tra c to r outreach requirements. Compare W.H. Scott Construction 
Co., Inc. v. City o f Jackson, 1999 U.S. App. LEXIS 33621 *21 (5th Cir. 
Dec. 23, 1999) (reading ordinance that did not explicitly limit 
participation goals to subcontracting as allowing MBEs, but not non- 
MBEs, to meet goal without subcontracting or outreach to potential 
subcontractors.)

9



Respectfully submitted,

Of counsel:

Pamela S. Karlan 
Stanford University School 

of Law
559 Nathan Abbott Way 
Stanford, CA 94305-8610 
(650) 725-4851

Elaine R. Jones, Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
Melissa Woods 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013
(212) 965-2200

Erica J. Teasley (Bar No. 178498) 
NAACP Legal Defense and 

Educational Fund, Inc. 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015
(213) 624-2405

Attorneys for Amicus Curiae

10



PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and 

not a party to the within action. My business address is: 315 W. Ninth Street, Suite 208, Los Angeles, 

CA 90015.

On December 29, 1999, I served the foregoing document described as BRIEF OF AMICUS 

CURIAE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. IN SUPPORT OF 

APPELLANTS, on all interested parties in this action by placing a true copy thereof in a sealed 

envelope addressed as follows:

Joan R. Gallo, City Attorney 
George Rios, Assistant City Attorney 
Glenn D. Schwarzbach, Senior Deputy 

City Attorney
Robert Fabela, Deputy City Attorney 
OFFICE OF THE CITY ATTORNEY
151 W. Mission Street 
San Jose, California 95110

Sharon L. Browne
Deborah J. LaFetra
PACIFIC LEGAL FOUNDATION
10360 Old Placerville Road, Suite 100 
Sacramento, California 95827

Alan Cope Johnston 
Su W. Hwang
MORRISON & FOERSTER LLP
755 Page Mill Road 
Palo Alto, California 94304

Jon Eisenberg 
HORVITZ & LEVY
1970 Broadway, Suite 1200 
Oakland, California 94612

Beth Parker
EQUAL RIGHTS ADVOCATES
1663 Mission Street, 4th Floor 
San Francisco, California 94103

United States Court of Appeal 
SIXTH APPELLATE DISTRICT
333 W. Santa Clara Street, Room 1060 
San Jose, California 95113

Honorable Richard C. Turrone 
SANTA CLARA COUNTY SUPERIOR 

COURT
191 N. First Street
San Jose, California 95113

(BY PERSONAL SERVICE) By causing each such envelope to be delivered by hand, 
as addressed, by delivering same to Ace Messenger and Attorney Service, Inc. with 
instructions that it be personally served.

(BY M ATT.) I am "readily familiar" with the firm's practice of collection and processing 
correspondence for mailing. Under that practice it would be deposited with U.S. postal 
service on that same day with postage thereon fully prepaid at Los Angeles, California 
in the ordinary course of business. I am aware that on motion of the party served, 
service is presumed invalid if postal cancellation date or postage meter date is more than 
one day after date of deposit for mailing in the affidavit.



PROOF OF SERVICE 
(Continuation)

[ ] (BY OVERNIGHT DELIVERY) By placing each such envelope for collection and
mailing at the Legal Defense Fund following ordinary practice for overnight service. I 
am "readily familiar" with the organization's practice of collection and processing of 
overnight service mailings following ordinary business practice, said practice being that 
in the ordinary course of business, correspondence is deposited with the overnight 
delivery service United Parcel Service for delivery as addressed.

I declare under penalty of perjury under the laws of the United States of America that the 
foregoing is true and correct.

Executed on December 29, 1999, at Los Angeles, California.

CHANDRA ELLINGTON-EVANS



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