Victory in Connerly v. Schwarzenegger

Author: Joshua Thompson

After oral argument today, the court entered judgment in favor of Petitioners Ward Connerly and American Civil Rights Foundation. This was the “AB 21” case where PLF challenged the constitutionality of several Public Contract Code statutes that granted preferences on the basis of race and sex.

In 2001, PLF represented Ward Connerly in a challenge to several statutes that granted race and sex preferences.  There, the court of appeal agreed with PLF, and held those statutes unconstitutional. Last year, the Legislature passed AB 21, which effectively reauthorized those same statues that the court of appeal had declared unconstitutional. PLF, on behalf of Ward Connerly and American Civil Rights Foundation, brought suit arguing that those statutes (as well as a couple others) were still unconstitutional, and that the court should issue a writ of mandate requiring the state to follow Proposition 209. The state, in an unexpected twist, agreed that the statutes were unconstitutional, but nevertheless argued that the court should not issue the writ, because the statutes were not being (and allegedly could not be) enforced.

The tentative ruling by the court agreed with all of PLF’s arguments. The Court said that the state could not survive by refusing to enforce statutes that were facially unconstitutional. Furthermore, the Court noted that several of the statutes that we were challenging were not covered by the Court of Appeal’s decision, so there was no possible way that the state could refuse to enforce them, and there was no possible way they could be read in a constitutional way. The Court also rejected the State’s argument that the uncodified section of the Bill indicated the State’s unwillingness to enforce the statutes. The Court noted that such language “cannot be used to create a meaning that cannot be found in the unambiguous statutory language itself.”

All in all, a 100% victory for Californians’ rights to be treated without respect to their race or sex.