Sacramento Superior Court holds "public officers" can treat people differently because of race

December 26, 2012 | By JOSHUA THOMPSON

Today we learned that the Sacramento Superior Court sustained the government’s demurrer in Connerly v. State of California.  This case challenged Government Code Section 8252 as facially unconstitutional, because it requires members of the Citizens Redistricting Commission to appoint officers to serve on the Commission according to their race.  Proposition 209 prohibits the government from making any race-based decisions in public contracting, public education, and public employment.  So, you could reasonably ask, how was Section 8252 — which everyone agrees discriminates on the basis of race — not a violation of Proposition 209? The Court held that “officers” of the Citizens Redistricting Commission, are not engaged in “public employment,” and are therefore free to make race-based decisions without violating Proposition 209.

PLF argued that, by its precise terms,  Proposition 209 does not distinguish between “officers” and “employees.”  The prohibition against race-based decisionmaking in Proposition 209 applies to all “employment.”  Instead of focusing on the language of Proposition 209, the court based its opinion on the view that under California law “officers” are different than “employees.”  According to the court, because “officers” are a distinct legal category from “employees,” the voters must have intended to only prohibit discrimination by public employees, not public officers.

Think about that for a second.  According to the court, the voters wanted to make sure that public employees — the lowest level of government “employment” — were not hired because of race.  But, also according to the court, the voters did not want to prohibit public officers — the highest level of government “employment” — from being hired on the basis of race.

Obviously, we disagree with the court’s decision, and we will be talking with our clients to determine the best course of action.