Domar Electric, Inc. v. Superior Court of Los Angeles County, CA Brief Amicus Curiae of the NAACP Legal Defense and Educational Fund, Inc. and Southern California Coalition for Economic Equity in Support of Petitioner City of Los Angeles

    4

%9}::Supreme Court No: S036526;

' ^ Court o f Appea!
• • ie , v  ■ '

Respondent, ■ • .  • ,  4 t v  ■ ^

Los Angeles Superior Court
Case No. BS 020805

SUPERIOR COURT OF CALIFORNIA 
COUNTY OF LOS ANGELES,

Respondent.

CITY OF LOS ANGELES,

Petitioner.

i
BAILEY CONTROLS COMPANY,

Intervenor.

Los Angeles, CA^0010-1910

. f , 5a Bhe s g
Y n -  - KEVIN S. REED, Bar No. 147685 
v, . , , ; , . v : - : -315  W. 9th Street, Suite 208 ,

Los Angeles, CA 90015 nc,

 ̂ L t r t . W

APPEAL FROM
SUPERIOR COURT OF LOS ANGELES COUNTY 

HON. ROBERT H. O’BRIEN, JUDGE

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

SOUTHERN CALIFORNIA COALITION FOR ECONOMIC EQUITY IN 
SUPPORT OF PETITIONER CITY OF LOS ANGELES

'• v'vfljfk Vti-

r  JOSEPH S. AYILAi JBac No. 47409 , BILL LANN LEE, Bar No, 108452
5 ' 3435 Wilshire Boulevard. Suite 920 • >r CONSTANCE L. RICE, Bar No. 153372



Supreme Court No. S036526

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

DOMAR ELECTRIC, INC.,

Respondent,

vs.

Court of Appeal
2nd Civ. No. B073387

Los Angeles Superior Court 
Case No. BS 020805

SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES,

Respondent.

CITY OF LOS ANGELES,

Petitioner.

BAILEY CONTROLS COMPANY, 

Intervenor.

APPEAL FROM
SUPERIOR COURT OF LOS ANGELES COUNTY 

HON. ROBERT H. O’BRIEN, JUDGE

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

SOUTHERN CALIFORNIA COALITION FOR ECONOMIC EQUITY IN 
SUPPORT OF PETITIONER CITY OF LOS ANGELES

JOSEPH S. AVILA, Bar No. 47409 BILL LANN LEE, Bar No. 108452
3435 Wilshire Boulevard, Suite 920 CONSTANCE L. RICE, Bar No. 153372
Los Angeles, CA 90010-1910 KEVIN S. REED, Bar No. 147685

315 W. 9th Street, Suite 208 
Los Angeles, CA 90015

Attorneys for Amici Curiae
NAACP Legal Defense & Educational Fund , Inc. 
And Southern California Coalition For 
Economic Equity



TABLE OF CONTENTS

I. Interest of Amici Curiae ............................................................................

II. Statement of Facts........................................................................................

III. Argument .....................................................................................................

A. The Outreach Program is Consistent With Charter §386 Because 
The Program Prevents Discriminatory Exclusion ot Minority and 
Women-owned Businesses For Which Petitioner City May Be
Liable..................................................................................................

B. The Outreach Program Is Consistent With Charter §386 As A
Permissible Measure to Expand Subcontracting Opportunities for 
Minority and Women Owned Businesses......................................

IV. Conclusion .................................................................................................

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TABLE OF AUTHORITIES

Cases Pages

City of Inglewood - L.A. County Civic Center Authority v.
Superior Court (1972) 7 Cal. 3d 861, [103 Cal. Rptr. 689, 500 P.2d 601].................. 3

City of Richmond v. J.A. Croson Co. (1989) 488 U.S. 469 ................................ 1, 4, 5

Domar Electric, Inc. v. City of Los Angeles (1993) 23 Cal. Rptr. 2d 857 ................2

Rojo v. Kliger (1990) 52 Cal. 3d 65 [801 P.2d 373, 276 Cal. Rptr. 130].....................1

Taylor v. Crane (1979) 24 Cal. 3d 442, [155 Cal. Rptr. 695, 595 P. 2d 1 2 9 ])............3

Statutes:

California Public Contract Code §2000 ...................................................................  2, 7

Los Angeles City Charter §386 .............................................................................. Passim

Reynolds, "Individualism vs. Group Rights: The Legacy of
Brown," 93 Yale L.J. 995 (1984) ......................................................................................6

Reynolds, "The Reagan Administration and Civil Rights: Winning the War
Against Discrimination,* 1986 U. TIL L. Rev. 1001 (1986) ........................................... 6

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INTEREST OF AMICI CURIAE
I.

The NAACP Legal Defense and Educational Fund, Inc. ("NAACP LDF') is a 

nonprofit corporation formed to assist African American persons suffering injustice 

by reason of racial discrimination through the provision of legal services. Since its 

founding in 1940, amicus NAACP LDF has prosecuted numerous lawsuits in federal 

and state courts on behalf of African Americans seeking vindication of their 

constitutional and civil rights. NAACP LDF also has participated in significant civil 

rights cases before this Court as amicus curiae. (See, e.g., Rojo v. Kliger (1990) 52 

Cal. 3d 65 [801 P.2d 373, 276 Cal. Rptr. 130].) Amicus believes that its experience in 

civil rights matters may be of assistance to the Court in resolving the instant case.

The Southern California Coalition for Economic Equity ("SCCEE") is a 

consortium of minority and women owned business enterprise organizations that 

assists the development and implementation of effective procurement policies for 

both private entities and government agencies. The membership of SCCEE includes 

thousands of minority and women-owned business enterprises located in Los Angeles 

and Southern California. Amicus believes that its experience in matters concerning 

women and minority owned business enterprises seeking public contracting 

opportunities may be of assistance to the Court in resolving the instant case.

II.

STATEMENT OF FACTS

In 1989, the United States Supreme Court issued its ruling in City of 

Richmond v. J.A. Croson Co. (1989) 488 U.S. 469, holding that a city could not set

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aside thirty percent of the dollar amount of each contract exclusively for minority 

subcontractors unless there was a predicate showing of prior discrimination and the 

remedy was narrowly tailored to overcome the prior discrimination. (488 U.S. at 

505-506.) Petitioner City of Los Angeles responded by issuing a mayoral directive 

clarifying that its ongoing efforts to encourage participation by minority and women- 

owned businesses in city contracting opportunities did not involve set asides, but only 

that bidders on city contracts engage in the specific activities to recruit and treat 

fairly minority and women businesses, as set forth in California Public Contract Code 

§2000, as part of a subcontractor outreach program. (See Domar Electric, Inc. v. City 

of Los Angeles (1993) 23 Cal. Rptr. 2d 857, 858 n. 4 and accompanying text.) 

Documentation of good faith subcontractor outreach measures taken by the bidder 

was made a part of the mandatory bid package. (See 23 Cal. Rptr. at 858-59.)

This case arose when a city agency disqualified the lowest bidder on a 

contract from consideration after the bidder declined to submit documentation of its 

subcontractor outreach efforts. The court of appeals below held by a split opinion 

that the subcontractor outreach program violated §386 of the Los Angeles City 

Charter, which requires that petitioner City award its contracts to the "lowest and 

best regular responsible bidder." (23 Cal. Rptr. 2d at 862.) The majority was of the 

view that the subcontractor outreach program, which is not specifically enumerated 

by the Charter, was ultra vires and therefore void. The court below ignored, as the 

dissent points out, that the term "responsible" bidder has been given a broad 

construction, and that §386(c) of the Charter specifically contemplates that bidders 

may be required "to submit with their proposals detailed specifications of . . . other

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appropriate factors." (Charter §386(c), quoted in 23 Cal. Rptr. 2d at 863 (opinion ot 

Spence, J., dissenting).)

III.

ARGUMENT

Following the dissent below, petitioner City’s brief argues that the outreach 

program is consistent with §386 because the subcontract outreach program and other 

requirements which "promote competition tend to lower bidding prices and enhance 

the quality of the product offered by qualified bidders," thus serving "the underlying 

purposes of the lowest - responsible - bidder provision." (23 Cal. Rptr. 2d at 864.) 

Amicus adopts the City’s argument to that effect, but additionally argues that the 

outreach program is consistent with §386 because the program seeks properly (a) to 

prevent discriminatory exclusion by bidders of potential minority and women 

subcontractors that exposes the City to potential liability, and (b) to expand 

subcontracting opportunities for minority and women-owned businesses without 

exposing petitioner City to reverse discrimination challenges.

The term lowest "responsible" bidder "‘has reference to the quality, fitness and 

capacity of the low bidder to satisfactorily perform the proposed work’" (23 Cal Rptr. 

2d at 864, quoting City o f Inglewood - L.A. County Civic Center Authority v. Superior 

Court (1972) 7 Cal. 3d 861, 867, [103 Cal. Rptr. 689, 500 P.2d 601]), and is broadly 

construed. (23 Cal. Rptr. 2d at 863, citing Taylor v. Crane (1979) 24 Cal. 3d 442, 450- 

51, [155 Cal. Rptr. 695, 595 P. 2d 129].) Charter §386(c), moreover, permits 

petitioner City to require bidders to submit "specifications of . . . other appropriate 

factors." The term "responsible," as used in Charter §386, therefore should be

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construed broadly to give effect to state and federal civil rights protections that 

encourage nondiscrimination in -- as well as expansion of — subcontracting 

opportunities for minority and women-owned businesses.

A. The Outreach Program is Consistent With Charter §386 Because The 

Program Prevents Discriminatory Exclusion of Minority and Women- 

owned Businesses For Which Petitioner City May Be Liable.

In requiring that set aside programs be justified by a showing of prior 

discrimination and narrow tailoring, Croson did not intend to impair the ability ot 

petitioner City to take appropriate measures to assure that contractors are not 

excluding minority and women businesses from subcontracting opportunities. Justice 

O’Connor’s Croson opinion states that:

Nothing we say today precludes a state or local entity from 

taking action to rectify the efforts of identified discrimination within its 

jurisdiction. If the City of Richmond had evidence before it that 

nonminority contractors were systematically excluded from 

subcontracting opportunities, it could take action to end the 

discriminatory exclusion. When there is a significant statistical 

disparity between the number of qualified minority contractors willing 

and able to perform a particular service and the number of such 

contractors actually engaged by the locality or the locality’s prime 

contractors, an inference of discriminatory exclusion could arise . . .

Under such circumstances, the city could act to dismantle the closed 

business system by taking appropriate measures against those who

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discriminate on the basis of race or other illegitimate criteria.

(488 U.S. at 509 (citations omitted).)

In order to ascertain whether bidders are excluding minority and women 

businesses for subcontracting opportunities, petitioner City is permitted to require its 

bidders to report on their good faith efforts to reach out to minority and women 

businesses. A bidder’s documentation of enumerated outreach efforts, absent fraud 

or misrepresentation, may preclude some of the more obvious forms of 

discriminatory exclusion to which minority and women-owned businesses have been 

subject. The court below enumerated the outreach program requirements at 23 Cal. 

Rptr. at 859 n. 4. They include advertising for, providing information about the 

project’s plans and specifications to, and negotiating in good faith with minority and 

women-owned businesses. The documentation requirement thus serves an objective 

similar to having the bidder sign a nondiscrimination statement, also a specification 

that petitioner City uses that is not enumerated by §386. (See 23 Cal. Rptr. at 863 

(Spence, J., dissenting).)

The Charter §386 requirement that a successful bidder be the lowest 

"responsible" bidder should be construed to permit the City to impose such 

requirements to assure nondiscrimination lest the City suffer liability as a participant, 

even an unwitting participant as suggested by Croson, in discriminatory exclusion of 

minority and women subcontractors by its bidders. Petitioner City may appropriately 

require that a "responsible" bidder not discriminate in its choice of subcontractors, 

thereby safeguarding the City against potential liability.

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B. The Outreach Program Is Consistent With Charter §386 As A Permissible 

Measure to Expand Subcontracting Opportunities for Minority and 

Women Owned Businesses.

Not only is the outreach program compatible with Charter §386 as a way for 

petitioner City to guard against discriminatory conduct by bidders, it is also 

consistent as a valid measure to expand subcontracting opportunities. The 

subcontracting outreach program to the extent it imposes positive duties is a form of 

voluntary affirmative action. Among the possible range of affirmative action 

remedies, outreach and recruitment are the least intrusive. They are techniques 

universally supported on a non-partisan basis. Even those, like William Bradford 

Reynolds, the former head of the Civil Rights Division of the United States 

Department of Justice in President Reagan’s Administration, who condemn the use 

of race conscious goals and set asides as unconstitutional and unwise, contend that 

outreach is acceptable in every respect. (See, e.g., Reynolds, "Individualism vs.

Group Rights: The Legacy of Brown," 93 Yale L. J. 995, 1004 (1984)("the only 

sensible policy is to expand recruitment, to reach out and include those minorities 

who were previously excluded, and to judge all applicants on their individual merits 

without discrimination"); Reynolds, "The Reagan Administration and Civil Rights: 

Winning the War Against Discrimination,” 1986 U. IU. L. Rev. 1001, 1020 

(1986)("enhanced minority outreach, recruitment, and training programs" are 

"effective, less intrusive remedies," and "true affirmative action, such as outreach, 

recruitment and training programs designed to attract increased numbers of 

minorities to the applicant pool, will continue to be preferred").) Thus, outreach

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should be that form of affirmative action that a city may undertake with the least risk 

of a reverse discrimination challenge.

The lowest "responsible" bidder language of §386 should be read in light of 

Public Contract Code section 2000 as a permissible alternative to goal setting. 

Petitioner City’s outreach program in fact is derived from section 2000, which 

expressly permits a county or city to award a contract, "[notwithstanding any other 

provision of law requiring a local agency to award contracts to the lowest responsible 

bidder," to a bidder who either meets the subcontracting outreach requirements 

specified in the mayoral directive or meets bottom line participation goals.

Petitioner City’s lowest "responsible" bidder Charter provision therefore should be 

construed in light of Public Contract Code section 2000 to permit the subcontracting 

outreach requirement of the mayoral directive.

IV.

CONCLUSION

For the above reasons, the Court should vacate the judgment below, uphold 

the validity of the outreach program under Charter §386, and remand for further 

proceedings. Amici NAACP Legal Defense and Educational Fund, Inc. and the 

Southern California Coalition for Economic Equity submit that petitioner City of Los

'Arnicas believes that petitioner City is not restricted to the outreach program 
approach, but may pursue other legitimate affirmative action efforts that genuinely 
open participation to all minority and women businesses.

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Angeles may permissibly pursue the outreach program to assure nondiscrimination in 

subcontracting and to promote the inclusion of minority and women-owned 

businesses as subcontractors, as well as to enhance competitive bidding.

Dated: March 2, 1994

Respectfully submitted,

Kevin S. Reed

Bill Lann Lee, Bar No. 108452 
Constance L. Rice, Bar No. 153372 
Kevin S. Reed, Bar No. 147685

Attorneys for Amicus Curiae 
NAACP Legal Defense and Educational 
Fund, Inc.

Joseph S. Avila, Bar No. 47409 
3435 Wilshire Boulevard, Suite 920
Los Angeles, CA 90010-1910

Attorney for Amicus Southern California 
Coalition for Economic Equity.

8



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 West Ninth Street, Suite 

208, Los Angeles, California 90015.
On March 2, 1994, I served the foregoing document described as BRIEF AMICUS 

CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. AND 
SOUTHERN CALIFORNIA COALITION FOR ECONOMIC EQUITY IN SUPPORT OF 
PETITIONER CITY OF LOS ANGELES, on all parties in this action by placing true copies 
thereof enclosed in sealed envelopes addressed as follows:

JAMES K. HAHN, City Attorney 
PEDRO B. ECHEVERRIA 
CHRISTOPHER M. WESTOFF 
1800 City Hall East 
200 North Main Street 
Los Angeles, CA 90012 
Attorneys for Petitioner 
CITY OF LOS ANGELES

BERNARD KAMINE, Esq. 
KAMINE, STEINER & UNGERER 
350 South Figueroa Street 
Suite 250
Los Angeles, CA 90071 
Attorneys for Respondent 
DOMAR ELECTRIC, INC.

GERALD PALMER, Esq.
JONES, DAY, REAVIS & POGUE 
555 West Fifth Street 
Suite 4600
Los Angeles, CA 90013 
Attorneys for Intervenor 
BAILEY CONTROLS COMPANY

HON. ROBERT H. O’BRIEN, Judge 
LOS ANGELES SUPERIOR COURT 
111 North Hill Street 
Los Angeles, CA 90012

CLERK
Court of Appeal 
Second Appellate District 
Division One 
300 South Spring Street 
Floor 2, "N" Tower 
Los Angeles, CA 90013

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.
Executed on March 2, 1994, at Los Angeles, California.

I declare under penalty of perjury under the laws of the State of California that the