Order Temporary Restraining Order
Introduction
This maker came before the Court on Monday , November 25, 1996 on
plaintiffs' Application for Temporary Restraining order ("TRO") In
particular plaintiffs [1] seek an order that would temporarily enjoin defendants
Governor Pete Wilson and Attorney General Dan Lungren [2] from enforcing
or implementing Proposition 209 after hearing extensive argument from the
parties the Court took plaintiffs' Application for TRO under submission.
This Court Is mindful that any challenge to a duly enacted law should be
met with caution and restraint. It is not for this or any other court to
lightly upset the expectations of the voters. At the same time federal
courts have no role more important than to uphold the federal Constitution
and ensure that the laws of our states do not violate basic constitutional
rights that form the very foundation of our system of democracy That role
is of course the same whether the law under consideration was enacted by
legislators in the state capital or by voters at the ballot box Indeed
in a case of this nature the issue is not whether this Court should reject
or respect the "will of the people.. "Rather the issue is whether
the challenged enactment complies with the laws of our Constitution and
Bill of Rights.
This Court is also aware that whenever issues affecting race and gender
enter into the electoral process some degree of controversy is inevitable.
It bears emphasizing however that this case does not call upon this Court
to adjudicate whether affirmative action is right or wrong or whether it
is no longer an appropriate policy for addressing the continuing effects
of past and present discrimination against racial minorities and women.
Such questions while they are most certainly of vital public policy interest
lie beyond the purview of this Court. Rather the substantive issues raised
by this action are considerably more narrow albeit no less important :
whether the particular method chosen by Proposition 2O9 to curtail affirmative
action is unlawful bemuse it violates the United States Constitution.
The focus of the instant motion is narrower still. It is only to determine
whether it is appropriate to temporarily maintain the pre election status
quo for the next ten to twenty days in order to afford the Court more time
to fully consider the merits of plaintiff's' challenge on a motion for
a preliminary injunction. It is with these considerations ions in mind
that the Court turns to plaintiffs' Application
Legal Standard
A party seeking a TRO must satisfy the same test required for the issuance
of a preliminary injunction. See Lockheed Miss e 8 Space Co. v. Hughes
Aircraft Co., 887 F. Supp. 132O, 1323 ~N D. Cal. 1995). According to Ninth
Circuit precedent, to obtain a preliminary injunction, the moving party
must demonstrate e either (1 ) a combination of probable success on the
merits and the possibility of irreparable injury or (2) that serious questions
are raised and the balance of hardships in favor of the movant Associated
Gen. Contractors of Cal. v. Coalition for Econ. Equity. 950 F. 2d 1401,
1410 (9th Cir. 1991), cert. denied. 503 U.S. 985 (1992). These formulations
are not different tests but rather two points on a sliding scale in which
the degree of irreparable harm increases as the probability of success
on the merits decreases. Id. In considering a request for a TRO a court
must remain n mindful that such relief is aimed primarily at preserving
the status quo pending a full hearing I on a preliminary injunction. Cf..
Los Angeles Mem. Coliseum Comm'n v. National Football League, 634 F.2d
1197, 1200 (9th Cir. 198O) ("fundamental principle" governing
preliminary injunctive relief is the need to maintain the status quo prior
to determination on the merits). In addition, under either formulation
of the test, a court in balancing the harms must take into account the
public interests that are implicated by the injunctive relief sought. Caribbean
Marine SON Go v Baldrige see. 844 F.2d 668. 674 (9th Cir. 198B).
Discussion
As noted above, plaintiffs seek to temporarily enjoin Governor Pete
Wilson and Attorney General Daniel Lungren from enforcing or implementing
Proposition 209, now embodied in the California Constitution, Article I,
Section 31 13.41
Likelihood of Success on the Merits
"The Equal Protection Clause of the 14th Amendment guarantees
racial minorities the right to full participation in the political life
of the community.".. Washington v. Seattle Sch. No 1, 458 U.S. 457,
467 (1982). This guarantee not only prohibits the outright exclusion of
women and minorities from the political process, but a so prohibits more
subtle distortions of the poling process that place special burdens on
the ability of women and minorities to achieve beneficial legislation.
Id, In the words of the Supreme Court, the State may no more disadvantage
any particular group by ma king it more difficult to enact legislation
in its behalf than it may dilute any person's vote.. Id. at 476 (quoting
Hunter v. Erickson, 393 U.S. 385. 393 (1969)).
Plaintiffs argue that Proposition 209, despite its facial neutrality violates
the Equal Protection Clause because it restructures the political process
to disadvantage those seeking to enact affirmative act on programs designed
to remedy past or present discrimination against women and minorities.
Relying on the Supreme Court opinions in Seattle and Hunter, plaintiffs
emphasize that prior to the passage of Proposition 209, supporters of affirmative
action were able to petition their state and local officials for race and
gender-conscious programs aimed at remedying discrimination Since the passage
of Proposition on 209, those seeking such programs must resort to a statewide
initiative to amend the California Constitution At the same time, individuals
seeking preferences based on any other ground, such as age, disability
or veteran status, continue to have access to the political process at
all levels. In other words, according to plaintiffs Proposition 209 requires
that advocate; of affirmative action, and no one else, must affirmative
a higher political hurdle.
Defendants contend that Proposition 209, by its terms. prohibits classifications
based on race and gender and therefore cannot be read to create such classifications
The Supreme Court, however, has made it dear that courts must look beyond
the plain language of an enactment. The relevant question is whether, in
reality. the burden imposed by a law necessarily falls on minorities and
women. W. at 468 As Seattle demonstrates, an otherwise facially neutral
law, it burdens the interests of the minority and restructures the political
process, may operate in reality as a radar or gender classification The
evidence presently before the Court strongly suggests that, as a result
of the passage of Proposition 209, "the community's political mechanisms
[have been modified to place effective decision-making authority over a
racial issue at a different level of government." Seattle, 458 U.S.
at 474. In light n of the foregoing, the Court is satisfied that plaintiffs
have demonstrated a probability that this case is controlled by the analysis
articulated by the Supreme Court in Washington v. Seattle School District
No. I, 458 U.S. 457 (1982), and that plaintiffs have demonstrated a probability
of success on their equal protection claim. [5]
Possibility of Irreparable Injury
Having demonstrated a strong probability of success on the merits,
plaintiffs must a so show a possibility of irreparable injury. Where the
deprivation of a constitutional right is involved. courts generally hold
that no further showing of irreparable injury is necessary. See Associated
En. Contractors, 950 F.2d at 1412, 11A Wright & Miller, FEDERAL PRACTICE
AND PROCEDURES § 2948 1. Plaintiffs must, nonetheless, demonstrate
that constitutional harm is imminent during the brief period prior to this
Court's taking up the motion for preliminary injunction.
The Court is satisfied that plaintiffs face an immediate possibility of
irreparable harm. The evidence assembled by plaintiffs indicates that the
Governor and Attorney General have acted with considerable dispatch in
implementing Proposition 209. These prompt implementation measures, viewed
in conjunction with the refuse by the Governor and Attorney General to
agree to a moratorium on enforcement actions against municipalities, agencies,
and other state entities,[6] adequately support plaintiff's allegation
that the class faces the possibility of in mediate injury. Plaintiffs concerns,
when viewed in light of the entire record, cannot be dismissed as merely
speculative The record reflects, for example, that the Governor, on the
day after the amendments passage, attempted to invoke Proposition 209 in
a state court proceeding aimed at striking down existing state affirmative
action programs
Finally, this Court also finds that the balance of harms tips decidedly
in favor of the moving party. The constitution for a few days of affirmative
action programs already in place does not impose any undue hardship on
the State of California. on the other hand, the public interest in remedying
discrimination, which underlies existing governmental affirmative action
programs, weighs in favor of granting a TRO.
Conclusion
The TRO is a preliminary action directed at maintaining the status quo
until a court has an opportunity to more fully explore the merits of a
case. The e Court today finds that plaintiffs have demonstrated that such
a TRO Is appropriate and that the pre- electron status quo should be preserved
until this Court can consider the panics arguments on plaintiffs motion
for preliminary injunction.
Accordingly and good cause appearing defendants Governor Pete Wilson and
Attorney General Daniel Lungren are HEREBY ORDERED TO SHOW CAUSE on Monday
December 16, 1996 at 10:0O a.m. in Courtroom 5, 450 Golden Gate Avenue,
San Francisco, California, why you, your of ricers, agents, servants, employees
and attorneys and those in active concert or participation with you or
them should not be restrained and enjoined, pending trial on this action,
from implementing or enforcing Proposition 209 insofar as said amendment
to the Constitution of the State of California purports to prohibit or
affect affirmative action programs in public employment, pubic education
or public contracting.[8]
Pending hearing on the above order to Show Cause. you, your officers, agents,
servants, employees and attorneys and those in active concert or participation
with you or them are HEREBY RESTRAINED AND ENJOINED except as otherwise
stated below, from implementing or enforcing Proposition 209 insofar as
said amendment to the Constitution of the State of California purports
to prohibit or affect affirmative action pro grams in public employment
public education on or public contracting.
At the hearing, counsel for defendants requested that any TRO entered by
this Court permit the Attorney General to (1) defend legal actions brought
against state entities seeking to enforce Proposition 209, and permit the
Governor to (2) continua the process of identifying I state affirmative
action programs potentially affected by Proposition 209 Having considered
all of the circumstances the Court grants these requests.
This Court will treat plaintiffs memorandum in support of their Application
for TRO as their opening brief in support of their Motion for Preliminary
Injunction Defendants and Defendant-Intervenor she I file their opposition
thereto no later then Friday, December 6, 1996. Plaintiffs shall file their
reply, it any, no later than Wednesday, December 11, 1996 at noon.[9l
IT IS FURTHER ORDERED that plaintiffs Motion to Certify a Defendant Class
shall be heard on Monday, December 16, 1996 at 10:00 a.m. in Courtroom
5 [103 Defendants' opposition to said motion shall be filed no later then
Friday, December 6, 1996. Plaintiffs' reply thereof it any, shall be filed
no later then Wednesday, December 11, 1996 at noon.
IT IS FURTHER ORDERED that all papers filed in connection with this Order
shall be hand-served or faxed on opposing counsel
IT IS SO ORDERED
Date: 11.12. 96
Signed by Thelton E. Henderson, Chief Judge
United States District Court