June 24, 2018
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PLF Files Formal Reply to Jerry Brown’s "Politically Expedient"

 PLF Files Formal Reply to Jerry Brown’s "Politically Expedient"  
Attack on Proposition 209

Sacramento, CA; May 8, 2009: California Attorney General Jerry Brown had his office execute an unjustified "about face" two weeks ago, when he came out against the constitutionality of Proposition 209, the California Constitution’s civil-rights mandate that outlaws government discrimination or preferences based on race or sex, in public contracting, education, and employment.

That is one of the key points made in Pacific Legal Foundation attorneys’ formal reply to Brown’s Proposition 209 brief, which PLF filed last night with the California Supreme Court. The PLF reply also suggests that Brown’s reversal of his offices’s stance might represent "political expediency."

Brown, in a letter brief to the California Supreme Court filed on April 22, claimed that Proposition 209 is unconstitutional to the extent it goes beyond the U.S. Constitution’s Equal Protection Clause in outlawing race- and sex-based preferences by government. Because the whole point of Proposition 209 is to provide more protection against race- and sex-based preferences and discrimination than under the U.S. Constitution, Brown is effectively calling for the state Supreme Court to void Proposition 209, or render it a nullity.

The reply filed by PLF attorneys points out that the very argument against Proposition 209 that Brown is advancing was explicitly rejected by the California Attorney General’s office in 1996.

Specifically, Brown urges that Proposition 209 be nullified under the "political restructuring" doctrine – a line of U.S. Supreme Court cases that have struck down state or local laws that: 1) create racial or sexual classifications; and 2) make it harder for members of the targeted groups to effect political change.

When this very argument was advanced in a federal court challenge to Proposition 209 in 1996, the California Attorney General’s office rejected the argument. The Attorney General’s brief in the case pointed out that Proposition 209’s protections apply equally to members of all races, so it "does not have a . . . ‘racial focus,’" and "does not single out a racial minority for disadvantageous treatment."

The Ninth Circuit agreed with the California Attorney General’s argument, and upheld Proposition 209’s constitutionality.

The PLF reply brief notes that the 1996 Attorney General’s brief got the law right – and Brown’s 2009 reversal gets it wrong. "Whatever political expediency might account for this belated about-face . . . the former Attorney General’s position on the constitutionality of [Proposition 209] rests on far stronger analysis, and far more compelling authority, than the Attorney General’s position on the same question in 2009," contends the PLF reply brief.

"Perhaps most disturbingly," the PLF reply brief continues, "the Attorney General’s most recent position reflects a presumption that the California Constitution cannot prohibit race- or sex-based discrimination that would be permissible under the [U.S. Constitution]." This contention by Brown flies in the face of the California Supreme Court’s well-established doctrine that the California Constitution secures more rights, not fewer, than the U.S. Constitution. "[T]he Federal Constitution provides a floor, not a ceiling, to the protection of individual rights under the California Constitution," as the PLF reply brief puts it.

Brown’s assault on Proposition 209, and PLF’s reply brief, have been filed in the case of Coral Construction v. San Francisco, in which PLF attorneys represent contractors who are challenging San Francisco’s policy of race-based quotas in public-works contracts.

PLF’s brief replying to Jerry Brown’s assault on Proposition 209, may be found at PLF’s Web site www.pacificlegal.org.

The author of PLF’s reply brief, PLF Principal Attorney Sharon Browne, is available for interviews, by contacting PLF at (916) 419-7111.

About Pacific Legal Foundation

Pacific Legal Foundation (www.pacificlegal.org ) is the oldest and most successful public interest legal organization that litigates for limited government, property rights, and individual rights in courts nationwide.

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Chides Brown for "About Face" From Previous AG Brief Affirming 209; PLF’s reply is available at www.pacificlegal.org

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