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A San Francisco law giving minority-owned businesses priority in public contracts is getting a look-see by the state Supreme Court — ostensibly to determine whether it violates a constitutional amendment that outlawed affirmative action in California. And although it wasn’t the city that sought review, its lawyers are taking the opportunity to argue that the court should strike down that controversial amendment. Five of the high court’s seven justices voted on Wednesday to review an appellate court ruling that, while all but voiding the city’s minority contracting law, had left the city with one remaining chance to save it. The April decision (.pdf) by San Francisco’s First District Court of Appeal remanded the case back to the trial court to see whether the city could prove a history of actual discrimination in contracting. It wasn’t clear late Wednesday why Justices Joyce Kennard and Carol Corrigan didn’t participate in the decision to review. Coral Construction Inc. v. City and County of San Francisco, S152934, was originally filed by two small companies that claimed the city’s law, which awards a contracting preference to minority and women-owned businesses, violated Proposition 209. That 1996 statewide ballot measure ended minority preference schemes of all types. In his petition for review, John Findley, an attorney for the Sacramento-based Pacific Legal Foundation, argued that the First District shouldn’t have sent the case back to the trial court. “[The] city had its chance to make its proof [of discrimination] and failed to do so,” he wrote. “The lower court’s remand in order to give [the] city a second bite at the preference apple contravenes the decisions of this court and the court of appeal.” Findley also argued that the city’s ordinance was based on “generalized findings” of discrimination, not specific harms. In her written response, Deputy City Attorney Sherri Kaiser defended the First District’s remand. “It merely did what California courts often do,” she wrote, “remand a case so the trial court could decide an issue on summary judgment that it mistakenly failed to address before.” Kaiser went even further, though, by asking the court to void Prop 209. She argued that the constitutional provision violates the federal equal protection clause and contravenes the International Convention on the Elimination of All Forms of Racial Discrimination, a human rights treaty ratified by the United States in 1994. “Both are unsettled [issues],” Kaiser wrote, “and address the validity of Proposition 209 — an issue far more significant than the fact-specific issue on which Coral seeks review.” City Attorney Dennis Herrera lauded the court’s decision, saying he’s sure San Francisco will prevail. “It is vital to economic equality that this ordinance be reinstated,” he said in a prepared statement. “If San Francisco doesn’t discriminate against minorities and women when it comes to tax-paying, it is only fair that minorities and women have equal opportunities when it comes to tax-spending.”

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