C&C Constr., Inc. v. Sacramento Municipal Utility District

*291 Opinion

Defendant Sacramento Municipal Utility District (SMUD) discriminates on the basis of race in some of its public contracting activities. This case presents the question of whether this discrimination is permissible under section 31 of article I of the California Constitution (hereafter section 31).

Plaintiff C&C Construction (C&C) moved for summary judgment on its complaint for declaratory and injunctive relief in which it alleged that SMUD’s affirmative action program, the 1998 Equal Business Opportunity Program, violates section 31, adopted by the voters on November 5, 1996, as the California Civil Rights Initiative (Proposition 209.) The relevant provision of section 31 declares: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” (§31, subd. (a).) A municipal contracting scheme that requires preferential treatment on the basis of race or gender violates this provision. (Hi-Voltage Wire Works, Inc. v. City of San Jose (2000) 24 Cal.4th 537, 565 [ 101 Cal.Rptr.2d 653 , 12…

Concurring.—For good or ill, in 1996 the electorate saw fit to amend the California Constitution to decree that “[t]he state shall not . . . grant preferential treatment ... on the basis of race, sex, color, ethnicity, or national origin in . . . public contracting.” (Cal. Const., art. I, § 31, subd. (a).) SMUD acknowledges that its preferential treatment policy runs afoul of this constitutional proscription unless it falls within an exception for “action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.” (Cal. Const., art. I, § 31, subd. (e).)

We are required to apply the language of the Constitution according to its terms. That task, in my view, is a simple one and is not advanced by the labored analysis proposed by appellants or the creative constitutional commentary offered by our dissenting colleague.

*313 As the dissent acknowledges, eligibility for federal programs is determined, in the first instance, by the concerned federal program agency. A challenge to eligibility is ultimately resolved in federal court. Neither we nor any other state court has authority to…

Oren Sellstrom, Woodland, for Lawyers' Committee for Civil Rights of the San Francisco Bay Area; Mark D. Rosenbaum and Dan Tokaji, Los Angeles, for American Civil Liberties Union Foundation of Southern California; Sheila Thomas, Oakland, for Equal Rights Advocates; Alan Schlosser for American Civil Liberties Union of Northern California; Ruthe Catolico Ashley for National Asian Pacific American Bar Association; Patricia N. Canites for Human Rights/Fair Housing Commission of the City and County of Sacramento, Greater Sacramento Urban League, National Indian Contractors Association, Sacramento Asian Pacific Chamber of Commerce, Sacramento Black Chamber of Commerce, Sacramento Filipino Chamber of Commerce, Sacramento Hispanic Chamber of Commerce, Women Construction Owners & Executives, USA; Joanne Speers, Sacramento, for League of California Cities; and Dennis J. Herrera, City Attorney, Burk E. Delventhal, Randy Riddle, Ellen M. Forman and Teresa L. Stricker, San Francisco, for City and County of San Francisco, as Amici Curiae on behalf of Defendants and Appellants.

Pacific Legal Foundation, Sharon L. Browne, Sacramento, Stephen R. McCutcheon, Jr., and Sharon M. Mathew, for…