Judge: Law Violates Prop. 209

California lawmakers improperly and unconstitutionally adopted legislation two years ago that violated the state's ban on race-based preferences, a Sacramento Superior Court judge ruled Thursday.

Ward Connerly called the ruling by Superior Court Judge Thomas M. Cecil another "nail in the coffin of preferences" based on race, sex, color, ethnicity or national origin.

Connerly had argued in the suit that Assembly Bill 703, signed into law by Gov. Gray Davis, was an "end run" around Proposition 209, a 1996 initiative banning preferences in state hiring, contracting and education.

"This is a happy day for me, personally, and for all of us who are identified with the Proposition 209 campaign," Connerly said Thursday. He is a Sacramento businessman and former University of California regent who has led efforts to ban race- and gender-based preferences.

Cecil's ruling expanded on a decision last September by the 3rd District Court of Appeal, which also rejected the legality of AB 703 in a case involving the Sacramento Municipal Utility District.

Tom Dresslar, a spokesman for state Attorney General Bill Lockyer, disputed Connerly's contention that Cecil's ruling will alter how the state views or reacts to AB 703.

"Today's ruling said the governor and attorney general cannot enforce a statute that they never did enforce and had no intention of enforcing," Dresslar said.

Connerly's attorney, Paul Beard of the Pacific Legal Foundation, said public agencies, including San Francisco and the Berkeley Unified School District, have continued to use the disputed law to defend what he believes are illegal programs.

The legislation at the heart of the fight, AB 703, was proposed by Assemblyman Mervyn Dymally, D-Compton, who declined to comment on Thursday's ruling other than to say he wants to appeal.

In proposing AB 703, Dymally had argued that it filled a loophole. Proposition 209 banned discrimination by public agencies but didn't define the term, he said.

His bill, now Government Code 8315, provided a definition that its supporters claimed could legally benefit underrepresented groups. The measure was approved by lawmakers on a party-line vote, with Republicans opposed.

AB 703 used a definition of discrimination that stemmed from the International Convention on the Elimination of All Forms of Racial Discrimination and was part of a treaty adopted by the United Nations General Assembly in 1965.

The definition stated that "special measures" taken on behalf of underrepresented groups are not necessarily discriminatory.

Specifically, the measure exempted "special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure (them) equal enjoyment or exercise of human rights and fundamental freedoms."

AB 703 did not define the scope or nature of such special measures, saying only that they cannot result in maintaining "separate rights for different racial groups" and must be discontinued once their objectives are met.

Under the legislation, government agencies need not prove racial discrimination before launching special measures. Individuals would have no legal standing to contest such measures unless they resulted in preferential treatment.

Dymally argued, at the time, that his goal was to encourage outreach programs, which can range from simple job advertising to rules aimed at boosting the number of female and minority contractors.

Supporters of AB 703 said it would send a green light to public agencies that favor creation of outreach programs but fear opposition or costly litigation tied to Proposition 209.

Connerly countered that the real goal of AB 703 was to provide a legal defense for race-based preferences.

"I think it was nothing more than a clever gimmick to try to give local agencies some sort of handle that they could use to circumvent the initiative," he said.

Connerly said that by failing to vigorously enforce Proposition 209, Lockyer has aided "obstructionists" whom he likened to "old segregationists in the South."

"Ward Connerly seems to find it difficult to part his lips without issuing invective," Dresslar said, adding that Lockyer's three-decade record of fighting for civil rights "speaks eloquently to the ludicrous nature of Mr. Connerly's comments."

The appellate case that served as a foundation for Cecil's ruling Thursday involved a SMUD program that gave financial breaks to some minority contractors and was challenged by C&C Construction of Loomis.

The appellate finding that AB 703 was unconstitutional largely rendered the Connerly suit moot, said Dresslar.

Dresslar suggested that Connerly continued to pursue the suit, costing public funds to defend it, partly to seek payment of attorney fees.

Beard countered that Thursday's ruling was critical because it dealt with a section of AB 703 not addressed by the appellate ruling and produced an injunction barring enforcement of AB 703.

The Bee's Jim Sanders can be reached at (916) 326-5538 or jsanders@sacbee.com.