Connerly v. State Personnel Bd.

112 Cal.Rptr.2d 5

92 Cal.App.4th 16

Ward CONNERLY, Plaintiff and Appellant, v. STATE PERSONNEL BOARD et al., Defendants and Respondents California Business Council for Equal Opportunity et al., Real Parties in Interest and Appellants.

No. C032042.

Court of Appeal, Third District.

September 4, 2001.

Pacific Legal Foundation, Anthony T. Caso and Sharon L. Browne, Sacramento, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros and Linda A. Cabatic, Senior Assistant Attorneys General, Catherine M. Van Aken and Paul H. Dobson, Deputy Attorneys General, for Defendants and Respondents California State Treasurer and California State Lottery Commission.

State Personnel Board, Elise S. Rose, Chief Counsel, and Dorothy Bacskai Egel, Sacramento, for Defendant and Respondent State Personnel Board.

Office of Legal Services and Jeff Marschner, Sacramento, for Defendant and Respondent General Services.

California Community Colleges, Chancellor's Office, Ralph D. Black, General Counsel, Sacramento, for Defendants and Respondents Thomas Nussbaum as Chancellor, etc. and Board of Governors of the California Community Colleges.

Munger, Tolles & Olson, Bradley S. Phillips, Fred A. Rowley, Jr., Los Angeles, Elizabeth Earle Beske, San Francisco, Steven B. Weisburd, Los Angeles, and Jeffrey L. Bleich, San Francisco; ACLU Foundation of Southern California and Mark Rosenbaum, Los Angeles; Mexican American Legal Defense and Educational Fund, San Francisco, Theresa Fay Bustillos and Thomas A. Saenz, Los Angeles; Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Eva J. Paterson, San Francisco, Oren M. Sellstrom, Woodland, Michael Harris, San Francisco, and Nancy Stuart, Auburn; California Women's Law Center, Abby J. Leibman and Paula Pearlman, Los Angeles; Employment Law Center, William McNeil and Julian Gross, San Francisco; Equal Rights Advocates, Inc. and Beth Parker, San Francisco; Loyola Law School and Karl Manheim, Los Angeles; ACLU Foundation of Northern California and Edward Chen, San Francisco, for Real Parties in Interest and Appellants.

Louise H. Renne, San Francisco City Attorney, Randy Riddel and Teresa L. Strieker, Deputy City Attorneys, for Local Public Entities as Amici Curiae on behalf of Real Parties in Interest and Appellants.

Michelle M. Yoshida for Mary Frances Berry et al. as Amici Curiae on behalf of Real Parties in Interest and Appellants.

SCOTLAND, P.J.

In this case, we consider whether five statutory programs that fall within the general rubric of "affirmative action" violate state and federal principles of equal protection and are contrary to article I, section 31, of our state Constitution, added by the adoption of Proposition 209 at the November 1996 General Election (hereafter Proposition 209).

The litigation, commenced by Governor Pete Wilson in his official capacity as Governor, challenges the statutory schemes on the ground that they impermissibly establish classifications and preferences based on race, ethnicity, and gender. The statutes at issue are Government Code section 8880.56, applicable to the State Lottery Commission; Government Code sections 16850 through 16857, applicable to the sale of state bonds; Government Code sections 19790 through 19799, applicable to the state civil service; Education Code sections 87100 through 87107, applicable to the California Community Colleges; and Public Contract Code sections 10115 through 10115.15, applicable to state contracting.

Plaintiff Ward Connerly (hereafter plaintiff) was later permitted to join the lawsuit as a taxpayer litigant, and he continued the litigation after Governor Wilson left office.

The trial court found invalid a portion of the statutory scheme applicable to the sale of government bonds and all of the statutory scheme applicable to state contracting, but otherwise rejected plaintiffs constitutional objections.

Plaintiff appeals from the judgment to the extent that it rejects his constitutional challenge to the statutory schemes. The real parties in interest cross-appeal, asserting that the data collection and reporting requirements applicable to state contracting may be severed from the remainder of the statutory scheme and upheld. In addition, respondent California Community Colleges raises the initial question whether plaintiff has standing to pursue this action.

We conclude (1) plaintiff has standing to maintain this litigation; (2) the statutory scheme applicable to the state lottery is invalid; (3) the statutory scheme applicable to the sale of government bonds is invalid, but a portion of the data collection and reporting requirements of the scheme may be severed and upheld; (4) the statutory scheme applicable to the state civil service is partially invalid, but the remainder of the scheme may be severed and upheld; (5) the statutory scheme applicable to the community colleges is invalid; and (6) a portion of the data collection and reporting requirements of the statutory scheme applicable to state contracting may be severed from the invalid portions of the scheme and upheld.

As we will explain, the statutory schemes at issue here were enacted over many years, some more than 20 years ago, during a time when the manner of applying equal protection principles to affirmative action programs was not settled. It has now been held that all racial classifications imposed by a governmental entity must be analyzed using the strict scrutiny standard of review. And, under our state Constitution, strict scrutiny applies to gender classifications. In addition, Proposition 209 imposes additional restrictions against racial and gender preferences and discriminatory actions.

Insofar as the challenged statutory schemes utilize race and gender classifications, we have reviewed them under strict scrutiny and Proposition 209, with the results that we have detailed above. Because our conclusion differs in some respects from the trial court's rulings, we shall reverse the judgment and remand with directions to enter a new judgment consistent with this opinion.

DISCUSSION

I

We begin by rejecting the claim that plaintiff lacks standing to pursue this litigation. According to the California Community Colleges, the decision in Cornelius v. Los Angeles County etc. Authority (1996) 49 Cal.App.4th 1761, 57 Cal. Rptr.2d 618 "suggests that [plaintiffs] state taxpayer status should not permit him to proceed; this challenge should be deferred in favor of persons with an actual injury." We disagree.

California's Constitution, unlike its federal counterpart, does not contain a "case or controversy" limitation on the judicial power. (National Paint & Coatings Assn. v. State of California (1997) 58 Cal. App.4th 753, 761, 68 Cal.Rptr.2d 360; see Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351, 364 [among other things, to establish a case or controversy under federal law, a plaintiff must have suffered an "`injury in fact'" that is "concrete," "particularized," and "`actual or imminent, not "conjectural" or "hypothetical"'"].) Therefore, restrictive federal rules of justiciability do not necessarily apply in state courts. (White v. Davis (1975) 13 Cal.3d 757, 763, 120 Cal.Rptr. 94, 533 P.2d 222.) In particular, there are two related rules of standing applicable in state court actions that are contrary to the rules in federal courts—the right to maintain an action as a taxpayer, and the right to maintain an action as a citizen.

Code of Civil Procedure section 526a permits a taxpayer to bring an action to restrain or prevent an illegal expenditure of public money. No showing of special damage to a particular taxpayer is required as a requisite for bringing a taxpayer suit. (White v. Davis, supra, 13 Cal.3d at p. 764, 120 Cal.Rptr. 94, 533 P.2d 222.) Rather, taxpayer suits provide a general citizen remedy for controlling illegal governmental activity. (Id. at p. 763, 120 Cal.Rptr. 94, 533 P.2d 222.)

Citizen suits may be brought without the necessity of showing a legal or special interest in the result where the issue is one of public right and the object is to procure the enforcement of a public duty. (Green v. Obledo (1981) 29 Cal.3d 126, 144, 172 Cal.Rptr. 206, 624 P.2d 256.) Citizen suits promote the policy of guaranteeing citizens the opportunity to ensure that governmental bodies do not impair or defeat public rights. (Ibid.)

Taxpayer suits and citizen suits are closely related concepts of standing. (See Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal. Rptr. 574, 777 P.2d 610.) The chief difference is a taxpayer suit seeks preventative relief, to restrain an illegal expenditure, while a citizen suit seeks affirmative relief, to compel the performance of a public duty. (Ibid.) Where standing appears under either rule, the action may proceed regardless of the label applied by the plaintiff. (Ibid.)

Statutorily enacted affirmative action programs are matters of intense public concern. (Department of Corrections v. State Personnel Bd. (1997) 59 Cal.App.4th 131, 143, 69 Cal.Rptr.2d 34.) Hence, a claim that such a program violates principles of equal protection and Proposition 209 is precisely the type of claim to which citizen and taxpayer standing rules apply.

Moreover, plaintiffs pursuit of this litigation is consistent with the purpose of a standing requirement, which is to ensure that courts address actual controversies between parties who have sufficient adverse interests to press their case with vigor. (Common Cause v. Board of Supervisors, supra, 49 Cal.3d at p. 439, 261 Cal.Rptr. 574, 777 P.2d 610.) This case has been litigated intensely, and there is no danger here that the court will be misled by the failure of the parties to adequately explore and argue the issues. (Van Atta v. Scott (1980) 27 Cal.3d 424, 450,166 Cal.Rptr. 149, 613 P.2d 210.)

The California Community Colleges suggest that we should deny standing to plaint...