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In an apparent victory for affirmative action, a San Francisco judge has rejected a challenge to the city’s efforts to give minorities and women a chance to win more government contracts in order to make up for past discrimination. Superior Court Judge A. James Robertson II on Tuesday granted the city’s summary judgment motion to deny the Pacific Legal Foundation and its client standing to challenge the city’s Minority Business Enterprise/Women Business Enterprise ordinance. The ordinance is similar to one in San Jose found to be unlawful by the California Supreme Court in December 2000. The PLF, a conservative legal advocacy group, has been fighting the San Francisco ordinance for two years, said S.F. City Attorney Dennis Herrera. The city has spent “thousands of taxpayer dollars in defending these baseless attacks,” Herrera said. “We hope the PLF will change its ways.” The PLF argued that the city’s 1998 ordinance violated Proposition 209, passed by voters in 1996 to ban race and gender consideration in public hiring, contracting and college entrance. Robertson ruled that the PLF’s client, Oregon-based Coral Construction Inc., failed to produce evidence to show it would be “imminently injured” by the ordinance. “They’re trying to manufacture a lawsuit when none exists,” Deputy City Attorney Randy Riddle said in an interview Wednesday. “They’re simply inviting the court to issue an advisory opinion, which courts are not in the business of doing.” Vincent Lechowick, lead PLF attorney for Coral, said his firm would appeal the case to the First District Court of Appeal and expects to win based on case law. “We’re convinced that the decision will be reversed,” Lechowick said. “This decision contradicts decisions of the California Supreme Court.” He cited the state Supreme Court’s ruling in Hi-Voltage Wire Works Inc. v. City of San Jose, 24 Cal. 4th 537 (2000), which held a similar ordinance to San Francisco’s violated the anti-preference provisions of Prop 209. “The problem is that San Francisco will try to enforce its political patronage, racial politics and discrimination on others,” Lechowick said. “San Francisco is a world unto itself.” Riddle said the difference between the two cities’ ordinances was that, unlike San Jose, San Francisco has studies that show there has been discrimination in the past against women and minorities in the contract process. “We have a duty under the federal Constitution to remedy the situation,” he said, referring to the equal protection clause under the Fourteenth Amendment. Coral Construction sought injunctive relief that would have prohibited the city from enforcing its ordinance in the future. The firm had been the successful bidder to put up new signs directing traffic at the San Francisco International Airport during its recently completed expansion. The construction firm then sought a second contract for more signage in May 2000. But Coral’s bid was rejected “solely for failure to comply with the race-and-sex-based subcontracting provisions,” the firm’s court papers allege. In September 2000, the company filed its lawsuit in San Mateo County, the location of the airport. Riddle said the litigation was transferred to San Francisco, since its ordinance was being challenged. The merits of the case were never argued, since the city chose instead to challenge Coral’s standing to pursue it. In a twist, Robertson on Tuesday initially issued a tentative ruling that held there were triable issues of fact and the matter should go forward. He then invited more argument. Deputy City Attorney Teresa Stricker told the court that it could not reject San Francisco’s summary judgment motion based on speculation of what might harm Coral in the future. “They’re seeking forward-looking relief,” Stricker said, by seeking to influence future contracts bids. “We have no plans to put out for bid any overhead sign works in the near future,” she added. Robertson then told the attorneys he was going into chambers again and would have a decision for them. Ten minutes later he returned to the bench, withdrew his tentative ruling and granted the city’s summary judgment motion. The judge also denied the PLF’s motion seeking injunctive relief to bar the city from enforcing its ordinance. City Attorney Herrera hailed Robertson’s ruling as ending two years of legal wrangling. “This office has been tremendously successful in beating back three challenges by the Pacific Legal Foundation to the city’s Minority Business Enterprise ordinance, which is designed to level the playing field for all people,” Herrera said. Stephen McCutcheon Jr., the PLF’s co-counsel for the construction firm, said in an interview that the judge’s ruling “applied a legal standard that no other court has applied” and can’t be met. “We would have to show which contracts Coral would bid on in the future,” McCutcheon said. “That’s in the mind of the city. There is no way to know what its intentions are.”

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