Larkin v. Patterson Brief in Opposition to Certiorari

    p P P n / r; n
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
NO. S0S0318 A , ,

03 D E C 23 p  2 : 4 1

HI-VOLT AGE WIRE WORKS, INC., et al., SUr U.W ^OUHI
Responaem^,< l; ~ L L ̂

v.

CITY OF SAN JOSE, et al.,
Appellants.

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

No. HO 18407

APPLICATION OF NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. FOR PERMISSION TO APPEAR 

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

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  D efense and  

Educational  Fu n d , In c . 
99 Hudson Street, Suite 1600 
New York, NY 10013
(212) 965-2200

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

Educational  F u n d , In c . 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015
(213) 624-2405

Attorneys for Amicus Curiae



By this application, pursuant to California Rules of Court, Rule 

14(b), the NAACP Legal Defense and Educational Fund, Inc. 

respectfully requests permission to file a brief as arnicas curiae on the 

merits in the above-captioned matter in support of Appellants City of 

San Jose and Susan Hammer. This application is timely made within 

thirty (30) days after the filing of the reply brief on the merits. A copy 

of the proposed amicus brief accompanies this application.

STATEMENT OF INTEREST

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

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

New York. Founded in 1940, LDF is America’s oldest civil rights legal 

organization devoted to securing equal justice for all. Over the years, 

LDF has been involved in more cases before the United States Supreme 

Court than any other entity except the United States government. In 

these, and all of its cases, LDF has used the law as a tool to open the 

doors of opportunity for African Americans, other people of color, 

women and the poor. Thus, LDF has a particular interest in the 

enforcement of the U.S. Constitution and civil rights and anti- 

discrimination laws in California and throughout the country.

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BASIS FOR APPEARANCE

The long involvement of LDF in efforts to ensure constitutional 

protection and to enforce state and federal civil rights laws gives LDF 

a special interest in the issues raised by this appeal. Due to LDF’s wide- 

ranging expertise in the areas of affirmative action and constitutional 

issues, amicus respectfully submits that it offers a unique perspective on 

issues which will aid this Court in its deliberations. The amicus curiae 

brief will present arguments and authorities different from those 

submitted by the parties and, to LDF’s knowledge, that will not be made 

by any other amici.

First, amicus will argue that this Court should construe applicable 

state constitutional provisions to avoid conflict with the federal 

Constitution. 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.

Second, amicus will argue that, in light of the administrative 

conclusions of the City of San Jose (the “City”) concerning actual 

historic discrimination against Minority Business Enterprises (“MBEs”) 

and Women Business Enterprises (“WBEs”) (which we do not 

understand respondents to contest), the Court of Appeal’s construction 

of Proposition 209 to prohibit the narrowly-tailored and factually

2



effectiye remedy of minority outreach raises severe problems under the 

Federal Constitution’s Equal Protection Clause. The Court of Appeal’s 

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

perpetuate the effects of prior unconstitutional or illegal discrimination 

against MBEs and WBEs and will commit new acts of unconstitutional 

or illegal discrimination.

CONCLUSION

This case presents important constitutional issues which must be 

addressed by this Court, but which were not fully presented by the 

parties. Proposed amicus, therefore respectfully requests that this Court 

grant the NAACP Legal Defense and Educational Fund, Inc. permission 

to appear as amicus curiae and accept the accompanying brief for filing.

Dated: December 28, 1999 Respectfully submitted,

Elaine R. Jones, Director-Counsel
Theodore M. Shaw
Norman J. Chachkin
Erica J. Teasley
Melissa Woods
NAACP Legal  D efense and

E ducational  F u n d , In c .

O f counsel:
Pamela S. Karlan
Stanford University School of Law

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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 APPLICATION OF 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. FOR PERMISSION TO 

APPEAR AS AMICUS CURIAE 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.

[XX] (BY MAIL) 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