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For more than five years, San Francisco’s city attorney fended off a legal group’s challenges to a city law that gives minority-owned businesses a leg up on city contracts. This week the Pacific Legal Foundation finally pierced the law’s armor. Siding with the foundation in an order released Tuesday, San Francisco Superior Court Judge James Warren ruled the law violates Proposition 209, the 1996 state constitutional amendment that outlawed affirmative action in California. His order granting summary judgment permanently enjoins the city from enforcing the law. “The intent of the voters in adopting Proposition 209 was to outlaw race- and sex-based programs irrespective of the good will and moral position behind any particular program,” Warren wrote. The city and the Sacramento-based legal foundation have been locking horns over the city’s contracting rules since the 1980s, when San Francisco enacted the first in a series of laws granting preferential treatment to minority- and women-owned businesses. The foundation used the equal protection clause in the U.S. Constitution’s 14th Amendment with limited success. In 1987, the Ninth Circuit U.S. Court of Appeals found parts of the city’s program unconstitutional. But after the city re-worked the ordinance and made specific findings of discrimination, a Ninth Circuit panel decided it passed muster in 1991. In three suits since 1999, PLF has attacked the law as violating Prop 209, which prohibits discrimination or preferential treatment on the basis of race and gender in public employment, contracting and education. It’s taken more than five years for a court to reach the merits. Judges had tossed two of the cases on procedural grounds. San Francisco Superior Court Judge Ronald Quidachay found one case wasn’t ripe for litigation. In another, Superior Court Judge A. James Robertson II decided Oregon-based Coral Construction Co. didn’t have standing. But in February, the First District Court of Appeal reversed Robertson’s decision and sent the case back to trial court. Sharon Browne, one of Pacific Legal Foundation’s principal attorneys, called Warren’s ruling “everything we could possibly have hoped for.” San Francisco City Attorney Dennis Herrera vowed to appeal. “This is a program that has been very effective in addressing discrimination in public contracting for many years,” said spokesman Matt Dorsey. Like the plaintiffs, Warren repeatedly cited a 2000 California Supreme Court opinion, Hi-Voltage Wire Works v. City of San Jose, 24 Cal.4th 537. The high court found a San Jose public contracting law violated Prop 209. Among other things, San Francisco applies a discount to bids submitted by minority- and women-owned contractors. It also requires contractors to show they’ve made an effort to work with minority- and women-owned subcontractors. “Voters acted with the intention to abolish any type of race- and sex-conscious program adopted by the city, regardless of its genesis,” Warren wrote. The city attorney says Warren erred. City lawyers contend that San Francisco fits an exception in Hi-Voltage that allows a race-conscious remedy where there’s been intentional discrimination, Dorsey said. Although Warren didn’t dispute the accuracy of a “disparity study” that the city had done to show discrimination, the judge found the study irrelevant to his decision. Warren ruled in two consolidated cases, Schram Construction v. City and County of San Francisco, 421249, and Coral Construction v. City and County of San Francisco, 319549.

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