Affirmative Action
C&C Construction, Inc. v. Sacramento Municipal Utility District
122 Cal. App. 4th 284 (3d Dist. 2004)
The trial court found that the Sacramento Municipal Utility District's ("SMUD") race-based affirmative action program, which was designed to eliminate contracting disparities, violated section 31 of article I of the California Constitution. Section 31 was adopted by California voters in 1998 as Proposition 209 and subdivision (a) prevents the state from discriminating against or granting preferential treatment to any individual on the basis of race in public contracting. Subdivision (e) of section 31 provides an exception if action 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.
SMUD conceded that its affirmative action program violated subdivision (a) and the only issue was whether the "federal funding" exception applied. The Court of Appeal affirmed the trial court's decision that SMUD failed to establish an affirmative defense under subdivision (e) because it produced no evidence of express federal contractual conditions, laws, or regulations that made approval of federal funds contingent upon race-based discrimination by SMUD.
Coral Construction, Inc. v. City and County of San Francisco
116 Cal. App. 4th 6 (1st Dist. Feb. 24, 2004)
Coral Construction, a specialty highway contractor, filed an action against the City and County of San Francisco, alleging that City's Minority/Women/Local Business Utilization Ordinance violates the California Constitution. The trial court granted City's motion for summary judgment on the ground that Coral had failed to demonstrate it would be bidding on an "identifiable City contract" subject to the ordinance in the near future. The Court of Appeal reversed, holding that Coral had standing because it demonstrated it was "able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis."
The Court of Appeal rejected City's contention that, to have standing, a plaintiff must identify a "specific contract it will bid on in the near future in order to demonstrate an injury that is 'actual or imminent.'" (emphasis in original). Finally, the Court of Appeal declined to decide the merits of the constitutional challenge because, the Court observed, such issues cannot be decided in the first instance on appeal. Thus, the Court remanded the case for further proceedings.
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