Petition — Minnick v. California Dept. of Corrections

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In the Supreme Court -

OF THE

United States

OcroBer TERM, 1979

No 699-1213

—————

Wayne Minnick, Henry J. DarveNn, CALIFORNIA

CorRECTIONAL OFFICERS ASSOCIATION,

Petitioners,

Vs.

CALIFORNIA DEPARTMENT OF Corrections, et al.,

Respondents.

Petition for Writ of Certiorari to the California Court of

Appeal, First Appellate District, Division Four

RonaLp YANK

CurIsTOPHER D. BurDICK

Gary M. Messinc

Carrot, Burpick & McDonoucH

One Ecker Bui!jing, Suite 400

Ecker and Stevenson Streets

San Francisco, California 94105

(415) 495-0500

Attorneys for Petitioners

SOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F., CA 94111 © (415) 981-7682

SUBJECT INDEX

Page

LEE CE GE EOE ELE PC PELE TET TERRES 2

I eo agen Lis > alu’ be Ang Se wie + ONE errs s 2

ERE AY Pee eS ee ee eee Pe 2

Constitutional provisions and statutes ...................... 3

Me eee Pe A Gos eeu ge aes Rance 4

I. © tt 61 a oh oe Sua geek key diac 4

IR I en ak leas chr a ahah wees 5

Ill

I a a re cGy a ce ataicg Sing nae age 8

Gig ore, og. tae. de a ie dae 4 ae 9

er ent. cate sis crea ao Sales Gaya 10

California Court of Appeal decision ........................ 12

A. The court erred in holding that the department’s prefer-

ential employment practices did not violate the Four-

ee RE SE IE OY ee Ee 14

1. The court’s reliance on Bakke was misplaced ...... 14

2. The Court of Appeal failed, in fact, to apply strict

scrutiny in reviewing and approving the state's

PS Sai Poe ea ¢ .- - SaiBOrait? C7 16

B. The court erred in relying on Weber to hold that the

department’s practices did not violate Title VII....... 21

1. The petitioners are afforded no less protection under

Title VII than under the Fourteenth Amendment .. 21

2. Under Title VII, as under the Fourteenth Amend-

ment, remedies adopted must be the least intrusive

upon the rights of innocent parties .............. 23

C. The court erred in finding no violation of California law 26

i ir re UN ing cs perkins teehee s yan 26

GREER conta aC colt gm Oe LAMA i Se Pee i Pern 31

TABLE OF AUTHORITIES CITED

Cases

Page

IAFF v. City of Palo Alto, 60 C.2d 295 (1963) .............. 10

Allee v. Medrano, 416 U.S. 802 (1974) ...................... 9

Arlington Heights v. Metropolitan Housing Development Corp.,

MP We es ss ig oy vais. os wn ctee ns. 15, 22

Baker v. City of St. Petersburg, 400 F.2d 294 (5th Cir. 1968) .15, 29

Bridgeport Guardians, Inc. v. Bridgeport Civil Service Com-

mission, 482 F.2d 1333 (2d Cir. 1973), cert. den. 421 U.S.

AE RN - SS SES 19

Brown v. Board of Education, 349 U.S. 294 (1954) .......... 15

Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976)

ee RNY 19, 25

Cooper v. Aaron, 358 U.S. 1 (1958) ..... re 15

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .................. 22

Franks v. Bowman Transportation Co., Inc., 424 U.S. 747

RISERS ade GC gh 25

Fullilove v. Kreps 584 F.2d 600 (2d Cir. 1978), cert. granted,

Oe MG, We CI, PE on ete eeleess 29, 30

Hazelwood School District v. United States, 433 U.S. 299

Os ae ye es eins a Seu dice» wh wa 0 6's 19, 20, 23

—_ Brotherhood of Teamsters v. U.S., 431 U.S. 324

ee Las hd ess win ve oss

Kirkland v. New York State Department of Correctional Ser-

vices, 520 F.2d 420 (2d Cir. 1975), cert. den. 429 U.S. 823

(Se? ..- Sea Ee iets ae ids «cba. 19, 25

Kramer v. Union School District, 395 U.S. 621 (1969) ........ 21

Monroe v. Board of Commissioners, 391 U.S. 450 (1968) ...... 15

Personnel Adm’s of Massachusetts v. Feeney, 99 S.Ct. 2282

ES ge a ee Rs wins Vin bh e os civ esos 22

Price v. Civil Service Commission, (S.Ct. No. SF 23836) ..... 30

Professional Firefighters Inc. v. City of Los Angeles, 60 C.2d

ee Oa ys nt eoda ve dase sactes. 9, 10

Regents of the University of California v. Bakke, 438 U.S. 265

GUN oS taaie cis a, a eh a aR ies 4,12, 14, 15, 16,17

Seiler inn vy. Rivoy, $C.od 1 (1871) .....................5.. 26

Smith v. Board of Education of Morrilton School Dist., No. 32,

365 F.2d 770 (8th Cir. 1966) ........... 16 ysl eee 15

Steele v. Louisville and Nashville Railroad, 323 U.S. 192 (1944) 25

United States v. Scotland Neck City Board of Education, 407

te NN ay sidid pie ceeds oases 15

United States v. State of New Hampshire, 539 F.2d 227 (1st

Cir. 1976), cert. den. 429 U.S. 1023 (1976) ................ 22

lil

TABLE OF AUTHORITIES CITED

CASES

Page

United Steel Workers of America, AFL-CIO v. Weber, et al.,

(1979) .... U.S. ....), 99 S.Ct. 272, 61 L.Ed.2d 480

i. Ae eee TT Ri eae 5, 13, 21, 23, 24, 25, 26, 28

Usery v. Allegheny Co. Institution District, 544 F.2d 148 (3rd

Re RP UCCKS . Cole dcta cates Vesa cious cua amae ame ere 22

Usery y Charleston School District, 558 F.2d 1169 (4th Cir.

RR sre ee AT at da Ceres ann ois as SA ERPG S

Washington v. Davis, 426 U.S. 229 (1976) ......... 5, 13, 14, 15, 22

Washington v. Lee, 263 F.Supp. 327 (M.D. Ala. 1966), aff'd

per curiam, Lee v. Washington, 390 U.S. 333 (1968) ...... 15

White v. Carolina Paper Board Corp., 564 F.2d 1073 (4th Cir.

8 ER RR SD AR pier er Set Rear UE Aneta Re ne) Oe ay oa 19

Constitutions

California Constitution:

Article I, Section7 ........... MRO a “Oe ee st Ng) A 3, 10,13

NM eg oe Pe Sa a ee EN 8 3, 10, 26

United States Constitution:

SS A, CR CY oS See, 14

Fourteenth Amendment ... .3, 4, 8, 10, 12, 13, 14, 22, 23, 27, 29, 30

Fourteenth Amendment, Section5 ....................... 22

Statutes

California Government Code:

See a en nye ae 1

Section 50084 ........... BERR ask FS a acc wes Se 3, 10

California Labor Code, sections 1410, et seq. ................ 3,10

Rip toMy OS Eg 8 Ps ers arcade eee 2

29 U.S.C. Section 206(b) (Equal Pay Act) .................. 22

42 U.S.C.:

(ANI SR Ss 7 Wi aes. Den eee weary eT A 3, 8, 10, 13

ET ss, EL ty eels eae, sa im aoe 3, 8, 10, 13

Title VII of the Civil Rights Act of 1964, 42 U.S.C. sections

2000(e), et seq. .............3, 8, 10, 12, 13, 19, 20, 21, 22, 23, 24

Other

H.R. Rep. No. 238, 92 Cong. Ist Sess. (1971) ................ 22

Legislative History, 1972, U.S. Code Cong. & Ad. News 2154 .. 22

S. Rep. No. 415, 92 Cong. Ist Sess. 24 No. 11 (1971) .......... 22

In the Supreme Court

OF THE

United States

OctosBer TERM, 1979

No. .

Wayne Minnick, Henry J. Darpen, CaLirorNia

CoRRECTIONAL OFrFiceRS ASSOCIATION,

Petitioners,

vs.

CaLiroRNIA DEPARTMENT OF CorRECTIONS, et al.,

Respondents.

Petition for Writ of Certiorari to the California Court of

Appeal, First Appellate District, Division Four

Petitioners WAYNE MINNICK, HENRY J. DARDEN

and the CALIFORNIA CORRECTIONAL OFFICERS

ASSOCIATION? respectfully pray that a Writ of Certi-

orari issue to review the decision rendered by the Cali-

fornia Court of Appeal, First Appellate District, Division

Four, entered in this case on July 27, 1979 as modified on

August 23, 1979.

‘The California Correctional Officers Association (hereinafter

referred to as “CCOA”), is a recognized agent of correctional

officers and other employees of the California Department of

Corrections, pursuant to California Gov. Code §§ 3525, et seq., for

purpose of representing them in all matters relating to employment

conditions and employer-employee relations. (Findings of Fact,

App. F, p. 2).

OPINIONS BELOW

The opinion of the California Court of Appeal (App. A

infra) is reported at 95 Cal.App.3d 506. A modification of

the opinion and a denial of a petition for rehearing (App. B,

infra) is reported at 96 Cal.App.3d 626a. The order denying

your petitioners’ Petition for Hearing before the California

Supreme Court (App. C, infra) is not reported. The

opinion of the trial court (App. D, mfra under the caption

“Notice of Intended Decision”), its judgment (App. E,

infra, under the caption “Judgment and Declaratory Judg-

ment”), its Findings of Fact and Conclusions of Law

(App. F, mfra), and its Permanent Injunction (App. G.

infra) are not reported.

JURISDICTION

The opinion of the California Court of Appeal, First

Appellate District, Division Four, was filed on July 27,

1979. That court’s order, denying your petitioners’ Peti-

tion for a Rehearing and the accompanying modification

of the initial opinion, was filed on August 23, 1979. A

petition for a hearing by the California Supreme Court

was filed in a timely fashion on September 5, 1979, and

was denied by the California Supreme Court on November

8, 1979 (Appendix C). The jurisdiction of this court is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a state agency may, absent proof that it

has engaged in previous intentional discrimination, volun-

tarily establish goals, set aside pusitions and grant

preferences, for the hiring and promotion of less qualified

minorities and women, to the detriment of all other appli-

eants and employees.

2. Whether the safe and efficient operation of cor-

rectional facilities constitutes a sufficient compelling

interest to justify the use of racial and sex-based prefer-

ences in hiring and promotion, and if so, whether proof

of that interest was sufficiently supported by the record.

3. Whether it is sufficient for a state agency to adopt

preferential employment practices based solely upon con-

clusory allegations of the discriminatory impact of its

past policies and practices on minorities and women.

4. Whether it is appropriate for a state correctional

institution to institute employment goals for minorities

based upon inmate population rather than the relevant

labor market or applicant flow.

5. Whether the relevant labor force for the hiring of

women should be based on state-wide employment sta-

tistics for women as opposed to applicant flow or the

labor force statistics for women in the relevant geographic

area in which the institutions are located.

CONSTITUTIONAL PROVISIONS AND STATUTES

The relevant constitutional provisions and statutes

are: U.S. Const. Amend. XIV; 42 U.S.C. §§ 1981, 1983 and

2000(e), et seq.; Calif. Const. A. I, §§ 7 and 8; Calif. Labor

Code §§ 1410, et seq., and Calif. Gov. Code § 50084, all of

which are set forth seriatim in Appendix H.

STATEMENT OF THE CASE

INTRODUCTION

This is an action brought by two Caucasian male

employees, and the CCOA, a recognized bargaining agent

for correctional officers and other employees of the Cali-

fornia Department of Corrections (hereinafter referred

to as “the Department”). The Department voluntarily

developed and implemented an affirmative action plan

(hereinafter “AAP”) and granted preferences to minorities

and women in the absence of proof of any prior discrimina-

tion. The objectives of the AAP were twofold: 1) attaining

a percentage of various minority groups in the Depart-

ment’s work force to reflect their percentage in the inmate

population, and 2) attaining a percentage of women in the

Department’s work force to reflect their percentage in the

total California state labor force. Employment preferences

were granted to attain goals contained in the AAP. In

furtherance of the goals, certain positions were set aside

solely for minority and female applicants and employees.

The rights of all other applicants and employees, secured

by the Fourteenth Amendment, are violated by these poli-

cies and practices.

Petitioners believe that immediate review of the issues

raised herein is important to the national interest insofar

as immediate guidance is needed for thousands of public

employers and many times that number of employees

around the country. It is necessary for this court to resolve

the tension created by Regents of the University of Calt-

fornia v. Bakke, 438 U.S. 265 (1978), which permitted the

limited use of preferences based in admissions policy based

on race in state higher educational institutions and Weber

[United States Stecl Workers of America, AFL-CIO v.

Weber, et al., ...... USS. ......, 99 S.Ct. 272, 61 L.Ed.2d 480

(1979) ], which permitted private employers to voluntarily

adopt AAPs absent a showing of prior discrimination, in

light of Washington v. Davis, 426 U.S. 229 (1976), which

requires public entities to show that they had engaged

in prior intentional discrimination before imposing race-

conscious remedies.’

STATEMENT OF FACTS

The California Department of Corrections voluntarily

adopted an affirmative action program in 1974. Despite the

binding disclaimer that it had engaged in any past inten-

tional discrimination,’ the Department adopted and imple-

2The need for immediate guidance for California public employ-

ers and employees is even more urgent in light of the opinion of the

California Supreme Court in Price v. Civil Serv. Comm., which was

released at the time that this petition was being prepared for the

printer. It is discussed more fully in Reasons for Granting a Writ,

section five, infra, beginning at page 30.

In response to an interrogatory the Defendants disclaimed hav-

ing engaged in any prior, intentional discrimination. They also

advanced an assertion of “adverse impact” which the California

Court of Appeal denoted as the only substantial evidence in the

record of past discrimination (App. A, p. 9). The interrogatory and

answer are as follows:

“INTERROGATORY 1.

Do you contend for the pig of this litigation that the De-

partment of Corrections of the State of California, or any of its

agents, employees, representatives, officers, officials or other author-

ized representatives, illegally or improperly discriminated against

any person with regard to employment opportunities or employ-

ment wages, hours, or other terms and conditions of employment,

on the basis of that person’s race, color, creed, sex or national

origin?

mented the AAP with the stated principal objectives of

increasing the number of “minority” employees in the

Department to a level equalling at least 70% of any given

“minority” in the inmate population of the Department

(i.e., state prisoners) and increasing the number of female

employees to a percentage equivalent to that in the total

California labor force in April, 1970 (App. A, pp. 5-6).

Goals were set for specified minority groups, including

“Black”, “Asian”, “Spanish surname”, “Native American”,

and “other extraction.” An “overall” goal of 36% minori-

ties employed and 38% women employed was established.

The AAP stated that achieving these goals would serve

the Department’s objective of improving relationships with

prisoners and reducing racial conflict and violence in the

prison system (App. A, p. 6). Although the percentages

of women and minorities to be employed as new hires by

the Department were targeted to be attained by July 1979,

the objectives of the AAP were to continue indefinitely to

apply to all other areas of employment, including promo-

tion, transfer, training and work assignments (App.

A, p. 7).

Preferences granted to minority or female employees

caused them to be hired, promoted, or transferred, over

ANSWER

For the purpose of this litigation the a yg we of Corrections

of the State of California does not allege that it has wilfully, with

a specific intent, engaged in illegal and/or improper discrimination

against any person with regard to employment opportunities or

employment wages, hours, or other terms and conditions of employ-

ment on the basis of a person’s race, color, creed, sex or national

origin. The ——— does allege, however, that as a result of its

past hiring and promotion practices and procedures, there has been

an adverse discriminatory impact on certain minorities and the

a - in terms of initial hiring and also promotion.” (CT pp.

121-122).

other more qualified applicants and employees. The record

clearly establishes that sex and rave were prime factors

for these employment decisions. Certain positions were

set aside for females or minorities and were labeled

“female only” or “minority only” (App. A, p. 8; App. F,

p. 4). For example, positions were advertised as “Correc-

tional Sergeant-Minority” (Exhibit 11), “Correctional

Counselor I-Female” (Exhibit 12), (R.T. 98-99), “Ree-

ords Officer I-Minority” (Exhibit 13), and “Correction

Lieutenant-Minority” (Exhibit 13). The application for

Field Representative stated that applications would be

accepted from women only (Exhibit 6, p. 6).

Even where positions were not reserved by title to

minorities or females, the intention to fill positions with:

minorities and females officially was made clear by man-

agement personnel and their agents, including oral inter-

view panelists, superintendents of institutions, and the

Director of the Department himself (Exhibit 1, RT 39;

Exhibit 3, RT 55-56; Exhibit 6, p. 1). Employees were

told that because of their race or sex they need not apply

or would not be considered, for employment positions

(RT 50, 69-70, 119-121, 129, 150-151). One officer was

instructed not to consider Caucasian candidates in hiring

clerical workers, and the Department downgraded posi-

tions to obtain sufficient minorities to fill those positions

(RT 170, 700, 715). In a memo, that officer questioned why

he should even interview white applicants “knowing that

institution policy is to hire only minorities until a selective

quota is met” (Exhibit M). In yet another instance, in

reply to a grievance filed by a Caucasian male, the Depart-

ment Director told him he was “sorry, but that affirmative

action was something we all had to deal with and several

of us would have to pay the price for it .. .” and that the

Caucasian male was one person who would be paying the

price (RT 151-152).

Ill

PROCEDURAL STATUS

On December 30, 1975, petitioners Wayne Minnick,

Henry J. Darden and CCOA brought this action in the

Superior Court of the State of California in and for

the City and County of San Francisco (CT, p. 1). The

Amended Complaint, filed on February 10, 1976, alleged

that the California Department of Corrections granted

preferences based on race and sex in hiring, promotions

and other terms and conditions of employment, to the

detriment of other applicants and employees who were

passed over because of their race or sex. The petitioners

alleged that such use of race or sex as a factor, or the

sole factor, in employment decisions violated rights under

the Fourteenth Amendment to the United States Con-

stitution, 42 U.S.C. §§ 1981, 1983, and 2000(e), et seq.,

and various California constitutional and statutory pro-

visions (CT pp. 63-81).

On October 12, 1977, following a non-jury trial, a Judg-

ment and Declaratory Judgment and a Permanent In-

junction in favor of petitioners in this action were entered

(App. E and G). The respondents Department of Cor-

rections and Director Enomote filed a notice of appeal

on October 14, 1977, and subsequently sought a writ of

supersedeas from the California Court of Appeal. The

Court of Appeal entered an order staying enforcement

of the Judgment and Permanent Injunction during the

pendency of the appeal (App. B, p. 15). The California

Court of Appeal entered its decision overturning the trial

court. Petitioners applied for a hearing and were denied

a hearing by the California Supreme Court on November

8, 1979, as described supra at page 2.

PARTIES

CCOA did not agree with the AAP and actively opposed

it, as is clear by its participation as a party to this

lawsuit. Petitioners Minnick and Darden were denied pro-

motion in deference to female or minority candidates

(App. A, p. 7), as were various other employees

(App. A, p. 7). CCOA fairly and adequately represented

the interests of all members disadvantaged by said prac-

tices (Finding of Fact 3, App. F, p. 2). Members of

CCOA, including petitioners Minnick and Darden, will

be affected by future implementation of the AAP with

respect to job opportunities (Finding of Fact 14, App. F,

p. 5).* CCOA, of course, had standing to bring the action

under the doctrine of Allee v. Medrano, 416 U.S. 802

(1974), Professional Firefighters Inc. v. City of Los An-

‘The trial court found that petitioners Minnick and Darden were

not entitled to monetary damages and denied a motion to certify

a class. However, the court accepted a stipulation by the parties

that the standing of CCOA, Minnick and Darden would not be

affected with respect to declaratory and injunctive relief ordered by

the court, and issued an order to that effect (CT 1194-1195). Fur-

thermore, the stipulation only carried out what the record has

reflected—that correctional officers who were certifiable within the

“rule of three” had been passed over and had testified that they

were willing to be amended into he action as plaintiffs-petitioners

(R.T. 7-14). Such amendments would have been timely and pro

under California law, at the time the stipulation was augud

geles, 60 C.2d 276 (1963) and IAFF v. City of Palo Alta,

60 C.2d 295 (1963).

The complaint named as defendants the respondents,

California Department of Corrections and Jiro J. Enomoto

in his representative capacity as the Department’s Director.

Judgment was not taken against the other defendants,

California State Personnel Board, and Carlos Sanchez, a

Deputy Director of the Department of Corrections.

TRIAL COURT DECISION

The trial court held that the defendants’ use of sex or

racial background or ancestry as a factor, or the sole factor,

in selecting applicants for employment and in promoting

employees was unconstitutional and void (App. D). A

judgment was issued to the effect that by discriminating

in hiring and promotions, the Department and its Director

were violating the Equal Protection Clause of the Four-

teenth Amendment to the United States Constitution, Title

VII of the Civil Rights Act of 1964, 42 U.S.C. $§ 2000(e),

et seq., Article I, §§ 7 and 8 of the California Constitution,

42 U.S.C. §§ 1981 and 1983, California Labor Code §§ 1410,

et seq., and California Government Code § 50084. Ad-

ditionally, the judgment found the arbitrary and capricious

nature of the racial categorization process to violate sub-

stantive and procedural due process guaranteed by the

United States Constitution and Article I, §7 of the Cali-

fornia Constitution (App. FE, p. 2).

Pursuant to the judgment, the Permanent Injunction

enjoined the defendants and their agents from granting

any preference, advantage or benefit on the basis of race,

color or national origin in hiring or promotion, but ex-

cluded from its prohibition the use of race or sex as

relevant factors in the determination of assignments and

job responsibilities of employees in the Department, and

provided for “male only”, “female only” and bilingual

certification for positions where the job-relatedness of

requirements could be objectively demonstrated (App. G,

p. 2).

The judgment was supported by the Findings of Fact.

The Court found that the Department’s discrimination was,

at least, in part motivated by the AAP which caused

preferences to be granted on the basis of race or sex and

not solely on the qualifications or merits of the individual

(Finding of Fact 8, Exhibit F, p. 3-4). Although the trial

court recognized long standing discrimination against

minorities and women by our society, it found that the

preferential employment practices in question were not

justified by, nor did they remedy, such past wrongs and

found that such preferences acted to the detriment of

innocent employees of the Department (Finding of Fact 13,

Exhibit F, p. 5). In addition to lacking a nexus between

the use of race and sex and any past discrimination by

society, the plan and resulting preferences were found to

be arbitrary and capricious since the program was devoid

of scientific or objective standards for classifying people

into racial categories, and had no dispute-resolution or

complaint procedures for such categorizations (Finding of

Fact 16, Exhibit F. p. 6). However, the trial court found

that the Department could consider the race and sex of an

employee as a factor in job assignment and job responsibil-

ities, in contrast to job opportunities, to serve a “state

interest in promoting the safety of correctional officers and

inmates, encouraging inmate rehabilitation, minimizing

racial tension, and furthering orderly and efficient prison

-Imanagement” (Finding of Fact 19, App. F, p. 6). Thus,

two distinct Conclusions of Law were entered, one finding

preferential employment practices unlawful and another

allowing the use of race and sex specifically and only as

factors in determining job assignments and job responsi-

bilities (Conclusion of Law, App. F, p. 8).

CALIFORNIA COURT OF APPEAL DECISION

The California Court of Appeal reversed the lower court

and held that the Equal Protection Clause of the Four-

teenth Amendment to the United States Constitution was

not violated. The court concluded that the preferences

granted in the AAP and implemented by the state are

within the purview of the type of plan permissible under

' Regents of the Unwersity of Califorma v. Bakke, (herein-

after “Bakke’’) 438 U.S. 265 (1978). The Court of Appeal

held that there is a compelling state interest in a safe and

efficient correctional system to justify such preferences

and that such interest is similar to the interest of the state

in attaining “ethnic diversity” among its students (App.

A. p. 16).

The Court also overturned that part of the judgment

based on the trial court’s Finding of Fact 16, that racial

classifications on the basis of employee surnames, violated

substantive and procedural due process rights guaranteed

by the Fourteenth Amendment to the United States Consti-

tution and Article I, Section 7 of the California Constitu-

tion. The rationale for so holding was that there was no

evidence showing that anyone had ever in fact been mis-

classified or aggrieved by such misclassification (App. A,

p. 26). The respondents were found not to have violated

42 U.S.C. §§ 1981 and 1983 since they merely provide a

remedy for Fourteenth Amendment violations (App. A, p.

24). Title VII, 42 U.S.C. §$§ 2000(e), e¢ seg. (hereinafter

“Title VIL”), was disposed of on the basis that “the fact

that the Department is a public employer suggests no

basis for excluding it from the reach of the Congressional

intent and objectives analyzed in United Steel Workers

(Unite? Steel Workers of America, AFL-CIO v. Weber,

et al., (1979) ...... MS wiaovis ), [99 S.Ct. 272, 61 L.Ed.2d

480]” (App. B, p. 2), (hereinafter “Weber’’). The court in

so doing summarily dismissed issues and failed to address

issues raised by the petitioners with respect to the require-

ments of Washington v. Davis, supra. The court clearly

erred in looking solely to Weber as the applicable govern-

ing law. The decision, insofar as it relied on other Cali-

fornia constitutional and statutory provisions, was over-

turned on the basis that these provisions provided no

greater rights than those provided by the Fourteenth

Amendment to the United States Constitution (App. A,

pp. 23, 25).

A. The Court Erred in Holding that the Department’s

Preferential Employment Practices Did Not Violate

the Fourteenth Amendment.

1. The Court’s Reliance on Bakke was Misplaced.

Neither the AAP nor the practices of the Department

comply with the requirements for a permissible program

under Justice Powell’s analysis in Bakke, which was relied

upon by the Court of Appeal. Bakke requires the showing

of a compelling state interest in using a burdensome classi-

fication, showing that the use of that classification is

precisely tailored to serve the compelling governmental

interest:

“We have held that in ‘order to justify the use of the

suspect classification, a State must show that its

purpose or interest is both constitutionally permissible

and substantial, and that its use of the classification

is “necessary ... to the accomplishment” of its purpose

or the safeguarding of its interest.’ ” University of

California Regents v. Bakke, 438 U.S. 265, 305.

In Bakke, Justice Powell found a State’s interest in

maintaining a diverse student body was a “special concern

of the First Amendment” of a compelling nature such as

to justify taking race into account in admitting medical

students ([bid., at pgs. 311-315). No parallel First Amend-

ment interest in diversity has been found to be appro-

priate in the employment context, nor has it been advanced

as a compelling interest in this case. To date, the use of

burdensome racial classifications in the employment context

has been upheld solely for the remedying of past inten-

tional discrimination by a public employer. Washington v.

Davis, 426 U.S. 229 (1976); Arlington v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977). The

Department’s stated objective for utilizing racial and sex-

based classifications was to “serve inmate-related objectives

of the Department by improving relationships with prison-

ers and reducing severe racial conflict and violence in the

state prison system” (App. A, p. 6). The use of such classi-

fications to serve the “operational needs” of a public

employer, or to satisfy community preference has been

repeatedly rejected, whether the preference inured to the

benefit of minorities or non-minorities. United States v.

Scotland Neck City Board of Education, 407 U.S. 484, 491

(1972); Monroe v. Board of Commissioners, 391 U.S. 450,

459 (1968) ; Washington v. Lee, 263 F.Supp. 327 (M.D. Ala.

1966), aff'd per curiam, Lee v. Washington, 390 U.S. 333

(1968); Cooper v. Aaron, 358 U.S. 1 (1958); Brown v.

Board of Education, 349 U.S. 294, 300 (1954); Baker v.

City of St. Petersburg, 400 F.2d 294 (5th Cir. 1968);

Smith v. Board of Education of Morrilton School Dist.,

No. 32, 365 F.2d 770 (8th Cir. 1966). Moreover, the

analogous notion that minority doctors are better able to

serve minority communities was rejected as_ sufficient

justification for the use of racial classifications by the

United States Supreme Court in Bakke, Id. 438 U.S. 265,

at 311.

Moreover, even if the state’s purported interests were

found to be compelling, the preferences granted fail to

comport with the requirements set forth by Justice Powell,

as relied upon by the Court of Appeal. Under Justice

Powell’s analysis, race or ethnic background may be used

as a “plus” in an applicant’s favor if (1) this does not

insulate individuals from comparison with all other candi-

dates for available positions and (2) candidates without

the “plus” are not totally excluded from fair and competi-

tive evaluation from a specific percentage of positions.

(Bakke, Id. at 316-319). We do, however, contend that even

the above Bakke-type of preference is not constitutional

in the employment context.

The Department’s AAP failed to qualify under both

above-described prerequisites. The Court of Appeal itself

recognized that Caucasians and males were totally excluded

from a specific percentage of positions when it indicated

that the stated goals of the Department were to attain a

level of minority employees equalling at least 70% of every

given minority in the inmate population (translating into

a goal of 36% overall minority employment), and to

employ women in 38% of its positions (App. A, p. 6). The

evidence clearly demonstrates that minorities and women

were insulated from comparison with all other candidates

for available positions (see Statement of Facts, pp. 7-8).

Additionally, the court ignored its own characterization

that such was the case:

“Some of these positions were labelled ‘female only,’

or with words similarly referring to sex (including

‘male only’) or to race or ethnic background.” (App.

A, p. 8).

2. The Court of Appeal Failed, In Fact, to Apply

Strict Scrutiny In Reviewing and Approving the

State’s AAP. |

The Department failed to show that use of racial and/or

sex based classifications served a permissible interest

(serving the “operational needs” of the Department) and

also failed to show that the use of these classifications was

necessary for, or related to, the accomplishment of the

purported interest.

The Court concluded that, after applying the standard

of “strict scrutiny” required under Bakke, preferences in

promotions and transfers of certain ethnic groups and

women served the compelling interest of the State in “the

proper management of its correctional system” (App. A,

p. 21). The extent of “scrutiny” employed in overruling

the trial court’s findings consisted entirely of the follow-

ing casual and conclusory remark:

“The AAP indicated, and there was evidence, that

the desired ‘minority’ level would serve inmate-re-

lated objectives of the Department by improving re-

lationships with prisoners and reducing severe racial

conflict and violence within the State prison system.”

(App. A, p. 6).

The AAP did not indicate that a “desired ‘minority’

level” would serve “inmate-related objectives of the De-

partment”, nor was there any evidence to support that

proposition. The court’s modification of its opinion de-

leted the assertion that the AAP indicated any relation-

ship between a desired minority level and the Depart-

ment’s objectives (App. B, p. 1), and set forth none of

the supposed evidence to establish this important nexus.

The substantial evidence was to the contrary, that there

was no nexus between obtaining a proportional relation-

ship between the race of the inmate population and that

of employees, and the reducing of racial tensions, ete.

(RT 585-586, 748-757). The evidence was that the per-

sonal behavior of the officer toward inmates, rather than

his/her race, was determinative (RT 754-755). The Court

of Appeal failed to advance any evidence to overturn the

trial court’s findings and conclusions that racial and sex

based preferences in hiring and promotion were discrim-

inatory (Finding 8, App. F, pp. 3-4; Conclusion of Law

4, App. F, p. 8). In fact, the Court of Appeal confused

these findings with those establishing the relationship

between job assignments and job responsibilities and a

compelling state interest in “orderly and efficient prison

management.” (Findings of Fact 19, App. F, p. 6; Con-

clusion of Law 4, App. F, p. 8).°

The Court’s “strict scrutiny” amounted to a mere as-

sumption that if the State has a compelling interest in

using race and sex in assignments and job responsibil-

ities, then it must have a compelling interest in attain-

ing a stated level of minority representation. A premise

that the use of race or sex is permissible in determining

job assignments and job responsibilities does not inevitably

lead to the Court of Appeal’s conclusion that a particular

level of minority and female employment is necessary;

there was no evidence that there was not already a suffi-

cient number of minorities to fulfill the Department’s needs

with respect to assignments and responsibilities. Also,

evidently, the trial court was correctly applying a more

‘In this petition, we are not addressing the trial court’s conclu-

sion that there may be, in some instances, a compelling state inter-

est in using race or sex for making job assignments and determining

job responsibilities. The Court of Appeal confused and misinter-

preted the trial court’s findings which differentiated an employer’s

interest in the maximum efficient utilization of its work force as

opposed to affirmative action for job opportunities.

rigid scrutiny with respect to employment opportunities

than it did assignments. The courts have differentiated

preferences granted with respect to various aspects of

employment cn the basis of the impact on the employ-

ment opportunities of identifiable innocent third parties

(with preferences in promotional opportunities receiving

the most rigid scrutiny). Bridgeport Guardians, Inc. v.

Bridgeport Civil Service Commission, 482 F.2d 1333 (2d

Cir. 1973), cert. den. 421 U.S. 991 (1975); Kirkland v.

New York State Department of Correctional Services, 520

F.2d 420 (2d Cir. 1975), cert. den. 429 U.S. 823 (1976);

Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.

(1976) cert. den. 431 U.S. 965 (1977); White v. Carolina

Paper Board Corp., 564 F.2d 1073 (4th Cir. 1977).

Even in Title VII cases, this court has recognized that

racial remedies must be narrowly tailored to rectify the

discrimination complained of. Hazelwood School District

v. United States, 433 U.S. 299 (1977). Thus, if this court

were to overlook the respondents’ disclaimer of prior in-

tentional discrimination, and were to overturn precedent

by holding that disproportionate impact, the mere asser-

tion of disproportionate impact, or judicial notice of so-

cietal discrimination suffices as a compelling state inter-

est, the Department’s AAP would still fail to pass the

test of strict scrutiny, since the preferences granted bear

no relation to past employment discrimination. Although

the trial court took note of societal discrimination against

minorities and women, it found that neither societal dis-

crimination nor discrimination by the Department were

advanced as compelling reasons for the adoption of pref-

erential employment practices, and that such practices

were not justified by, nor did they remedy, past wrongs

by society against minorities and women (Finding of

Fact 13, App. F, p. 5). The Court of Appeal agreed that

evidence of past discrimination was “irrelevant” to this

ease (App. A, p. 28).

Where there is proven past discrimination the law

clearly establishes that an appropriate remedy may be

fashioned to equalize the relevant labor force statistics

of the protected group. Hazelwood, supra. In an unprec-

edented opinion, the California Court of Appeal chose to

accept as the benchmark for goals, the inmate popula-

tion of minorities, rather than the labor force statistics

for minority groups. The Court chose to accept statewide

employment statistics as the benchmark for goals for hir-

ing and promoting women, as opposed to the applicant

flow or labor force statistics of women in the relevant

geographic areas in which institutions were located. This

not only conflicts with Hazelwood, supra, but also it is

inconsistent with precedents under Title VII, supra, page

15, which prohibit consideration of customer or community

preference in employment decisions.

Further evidence that the state failed to narrowly tailor

preferences to meet its stated objectives can be found

in the Court of Appeal’s observation of the casualness

of the classification system. Although the Court of Appeal

disagreed with the trial court that the respondents had

violated procedural and substantive due process rights

by having no scientific or objective basis for classifying

people in racial categories and no complaint or dispute-

resolution procedure, it noted that “the identification of

race by surname is somewhat casual and very possibly

inaccurate (e.g., in identifying the race of a woman mar-

ried to a husband with an Asian surname)” (App.A, p.

20-21). It is apparent that appointment of non-minority fe-

males married to individuals with Asian and Spanish sur-

names would not serve the purported needs of the De-

partment in achieving a racial balance in the work force

to reflect the racial composition of the inmate population.

The record is devoid of evidence that the racial classifi-

cations used were necessary to achieve the articulated

state goal. Moreover, this highlights the fact that the

Court of Appeal never addressed the question of whether

less intrusive means were available to attain the state’s

purported objectives, as required under Kramer v. Union

School District, 395 U.S. 621 (1969), and numerous other

cases.

B. The Court Erred in Relying On Weber to Hold that

the Department’s Practices Did Not Violate Title VII.

1. The petitioners are afforded no less protection

under Title VII than under the Fourteenth

Amendment.

The Court of Appeal erroneously relied upon Weber, in

holding that the employment preferences of the Depart-

ment were not violative of Title VII. The Court of Appeal

ignored this court’s express reluctance to extend the ruling

of Weber, to the public sector “since the Kaiser-U.S.A.

Plan does not involve state action [the] case does not pre-

sent an alleged violation of the equal protection clause of

the constitution.” (Weber, supra, 99 S.Ct. 2721, 2726, 61

L.Ed. 2d 480, 487).

Title VII should be construed to incorporate the com-

mands of the Fourteenth Amendment, since the 1972

amendments to Title VII, making the act applicable to

public entities, were premised upon Section 5 of the Four-

teenth Amendment, which provides that “Congress shall

have the power to enforce by appropriate legislation the

provisions of this article.”* The view was confirmed by

this Court in Fitzpatrick v. Bitzer, 427 U.S. 445, 453 (1976)

and numerous appellate courts.’ Whatever the constitu-

tional basis for the passage of Title VII, Congress could

not, in passing the amendments to Title VII, abrogate or

limit by statute the petitioners’ rights under the Four-

teenth Amendment. Thus, “adverse impact” is not suffi-

cient (even if proved) since the Fourteenth Amendment

requires prior intentional discrimination to be demon-

strated to justify a remedy which imposes racial classifi-

cations. Washington v. Davis, 426 U.S. 229 (1976) ; Arling-

ton Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977). See also, Personnel Adm’s of Massa-

chusetts v. Feeney, 99 S.Ct. 2282, 2292 (1979). As this

Court stated in Arlington Heights, swpra, “official action

will not be held unconstitutional solely because it results

in a racially disproportionate impact.” At 264-265.

°See Legislative History, 1972, U.S. Code Cong. & Ad. News

2154; H.R. Rep. No. 238, 92 Cong. Ist Sess. (1971); S. Rep. No.

415, 92 Cong. Ist Sess., 24 No. 11 (1971).

"See United States v State of New Hampshire, 539 F.2d 227 (1st

Cir. 1976), cert. den. 429 U.S. 1023 (1976). C. Usery v. Charles-

ton School District, 558 F.2d 1169 (4th Cir. 1977) (Equal Pay Act

29 U.S.C. § 206(b); Usery v. Allegheny Co. Institution District,

544 F.2d 148 (3rd Cir. 1979).

2. Under Title VII, as under the Fourteenth Amend-

ment, remedies adopted must be the least intru-

sive upon the rights of inndtent parties.

As previously stated, under Title VII, the intrusiveness

of remedies on the rights of innogent parties must bear

some relationship to the nature and quality of prior dis-

crimination, if any, against a particular group. Hazelwood,

supra. Blacks are the only minority group granted a pref-

erence under the affirmative action plan in Weber. Not only

did the court take judicial notice of the specifie congres-

sional history of Title VII with respect to Negroes,* but

also the court specifically took judicial notice of the

exclusion of blacks from craft unions. 61 L.Ed.2d 480, 486.

Here, the California Court of Appeal has completely

ignored any differences between the congressional history

of Title VII and that of the Fourteenth Amendment inso-

far as the preferences in this case affect other minorities

and women, as opposed to blacks. Certainly those who

drafted and passed the Fourteenth Amendment did not

contemplate nor intend that minority persons would be

better off than non-minorities insofar as treatment by state

agencies were concerned.

Furthermore, the Weber affirmative action plan was less

intrusive than the one in the instant case insofar as it was

*“Congress’ primary concern in enacting the prohibition against

racial discrimination in Title VII of the Civil Rights Act of 1964

was with ‘the plight of the Negro in our economy’ 110 Cong. Rec.

6548 (remarks of Senator Humphrey) . . . accordingly it was clear

to Congress that ‘the crux of the problem [was] to open employ-

ment opportunities for Negroes in occupations which have heen

traditionally closed to them’, Ibid. at 6548 (remarks of Senator

Seabieey) and it was to this problem that Title VII’s prohi-

bition against racial discrimination in employment was primarily

addressed.” 61 L.Ed. 480, 488-489.

negotiated and time-limited and the preferences in Weber

involved only employment level, and did not involve pro-

motions and the like. One of the reasons this court was

able to sanction the racial classifications imposed by the

affirmative action program in Weber was the fact that “the

plan is a temporary measure; it is not intended to main-

tain racial balance, but simply to eliminate a manifest

racial imbalance.” Weber, supra, 61 L.Ed.2d 480, 492. Not

only is there no evidence that the Department’s AAP is

temporary, but all indications are to the contrary. In fact,

the plan would not serve the interest it purports to serve

if it was only temporary, since the composition of the De-

partment’s work force can not continue to mirror the

racial proportions of the inmate population, if that popu-

lation fluctuates. Moreover, even if the proportions of

inmates in the inmate population were stable, continued

vigilance and adjustment would be necessary, due to fluc-

tuations in the Department work force with respect to both

desired levels of employment as well as distribution of

minorities and women in promotional positions.

In addition, the collectively bargained agreement in

Weber was less intrusive upon the rights of other employ-

ees and their bargaining representative than is the vol-

untarily imposed AAP of the Department. In reviewing

the legislative history of Title VII, the court found that

the statute must be read in light of legislators’ demands

that “management perogatives and union freedoms .. . be

left undisturbed to the greatest extent possible .. .” and

that “Federal Government interference with private busi-

nesses” be minimized. 99 S.Ct., 2721, 2729, 61 L.Ed.2d 480,

491. Consequently, Title VII was designed to create an

atmosphere conducive to voluntary or local resolution of

problems caused by discrimination and was intended to act

as a “spur or catalyst to cause ‘employers and unions to

self-examine and self-evaluate their employment practices

and to endeavor to eliminate, so far as possible, the last

vestiges of an unfortunate and ignominious page in this

country’s history’. Albemarle v. Moody, 422 U.S. 405, 418

(1975).” 99 S.Ct. at 2728, 61 L.Ed. 480, 489.

Not only was the employment opportunity in Weber

(training to facilitate the hiring of blacks) inherently less

tied to the expectations of employees to promotions in a

merit system (see Chance and Kirkland, supra, p. 14), but

the benefit was itself a new one, negotiated by the union

for all employees, in return for a modification of the senior-

ity provisions. Under a collectively bargained plan, em-

ployees who feel that they have been denied fair repre-

sentation by the labor organization on the basis of race,

have redress against the employee organization. Steele v.

Louisville and Nashville Railroad, 323 U.S. 192 (1944).

Here, the Department’s preferential employment plan

places the entire burden of any past discrimination by

society, or by the employer, on innocent male and Cau-

casian employees (even assuming that a showing or claim

of adverse impact is sufficient). This runs contrary to the

concerns expressed in Franks v. Bowman Transportation

Co., Inc., 424 U.S. 747 (1976) and embraced by a strong ma-

jority in International Brotherhood of Teamsters v. U.S.,

431 U.S. 524, 372 (1977). The impact of affirmative action

can be shifted and benefits and burdens more easily dis-

tributed when a plan is collectively bargained as opposed

to unilaterally imposed. Here the preferential practices

were not only not agreed to, but were vehemently opposed

by the employee organization involved.

C. The Court Erred in Finding No Violation of California

Law.

The California Court of Appeal disposed of the other

California constitutional and statutory provisions by hold-

ing the United States authoritities to “provide no less indi-

vidual protection than is guaranteed by California law.”

(App. A, p. 23). This is true, except with respect to Article

I, Section 8 of the Constitution, which has been clearly

held by the California Supreme Court to establish a sus-

pect classification, where sex-based categories are con-

cerned, holding them subject to strict scrutiny, and thereby

creating greater protection for males than under the fed-

eral authorities. Sail’er Inn v. Kirby, 5 C.3d 1 (1971).

REASONS FOR GRANTING A WRIT

1. It is important for this court to settle the question

of whether a state public employer may grant preferences

in hiring and promotion, based on sex or race, where there

is no evidence of past employment discrimination. That

question remains open after Weber, and its resolution is

necessary for the guidance of thousands of public employ-

ers throughout the country and to inform hundreds of

thousands of public employees of all races and both sexes

of what expectations they may have with regard to employ-

ment opportunities.

This case presents a harder test for the granting of

racial or sex-based preferences by an employer than that

used in Weber. That is, as indicated in our analysis of the

California Court of Appeal decision, supra, consistent with

the Fourteenth Amendment, a public employer’s granting

of preference must pass the standards this court has enun-

ciated where racial categorizations are concerned. To utilize

racial preferences, a public employer must advance a com-

pelling state interest subject to the strictest scrutiny and

show a nexus between the interests served and the means

used to achieve that interest, and the means used must

also be the least intrusive on innocent parties. Mere recti-

fication of an imbalance has been held not a sufficient inter-

est under the Fourteenth Amendment for a public employer

to justify using racial preferences. Our courts have clearly

held that the public employer must show that it engaged

in prior intentional discrimination and justify the use of

preferences to remedy the past intentional discrimination.

This case presents an excellent record for the deter-

mination of the constitutionality of the granting of racial

and sex-based preferences in public employment. In this

case, it was admitted that there was no prior intentional

discrimination and even if there had been, there was no re-

lationship shown between any prior discrimination and the

preferences used, since prior discrimination was not the

purported interest to be served. Even if the remedying of

prior discrimination was the stated objective, there is no

logical relationship between any prior discrimination and

the program adopted by the Department. The nexus be-

tween the stated interest and the means to achieve it (im-

proving the efficiency of the Department by balancing the

work force to reflect the racial balance of the inmate pop-

ulation and to reflect the balance by sex in the California

state labor force) has no support in the record, is illogical,

and is not the least intrusive means of achieving the ob-

jective, even if it were logical. Thus the findings of the

trial court and the record squarely present this court with

the opportunity to decide whether racial and sex-based.

preferences can be granted where the preferences Were not |

designed, nor intended, to remedy past discrimination.

It should be noted that the Department’s system of

racial preferences inures substantially to the benefit of

minority groups other than blacks, since the racial propor-

tion of various minority groups in the California state

prison system is substantially higher than that in the work

force in general (Exhibit G and R). Thus, in Weber the

preferences granted were clearly related to a reasonable

index of past discrimination. The emphasis in Weber was

still on the relevant labor force, as “new trainees were to

be black until the percentage of black skilled craft workers

in the Gramercy plant approximated the percentage of

blacks in the local labor force.” Weber, supra at 61 L.Ed.2d

480, 486.

2. Another reason for granting a writ in this case is

that this case most clearly raises the issue of whether the

state may support as a sufficient and compelling interest

for the adoption of a system of racial preferences in job

opportunities, the need to maintain a proportionate level

of individuals of a particular race to the number of inmates

of that race in the California Department of Corrections

in order to provide a “safe and efficient correctional

system” (App. A, p. 19). There is substantial authority

which rejects the notion that “operational needs” of a

public employer may serve as a compelling state interest.

The satisfaction of a community preference has been

rejected where the community preference was for the

benefit of blacks as well as Caucasians. See Baker v. City

of St. Petersburg, ete., cited supra, p. 13.

3. This case most clearly raises the issue of whether

different standards of scrutiny will be applied to women

and to minority groups other than blacks with respect to

employment preferences. The writ should be granted since

no case has clearly dealt with the differences in constitu-

tional legislative history pertaining to women and various

minority groups as opposed to blacks. As stated above, the

Department’s preferences inure substantially to the bene-

fit of non-black minorities.

4. It is important for this court to grant a writ in this

ease to fully settle the issues raised by the use of race and

sex in employment opportunities by public employers.

Although this court has granted a writ of certiorari in

Fullilove v. Kreps 584 F.2d 600 (2d Cir. 1978), cert.

granted, 99 S.Ct. 2403 (May 21, 1979), that case will not

fully dispose of issues herein. In Fullilove the constitu-

tionality of a federal statute is challenged which provided

a 10% “set-aside” for minorities in construction businesses

at least 50% owned by minority group members. Although

the federal government is judged by a standard of strict

scrutiny under the Fourteenth Amendment, that case is

clearly distinguishable since the legislative history dis-

closed a connection between past discrimination and the

“set-aside” amendment which sought to remedy it. Fullilove

584 F.2d 600, 605. Moreover, the Court of Appeals for the

second circuit noted, “the rule for ascertaining what the

purpose of Congress was in enacting a statute that is

subject to scrutiny under the equal protection clause is

more deferential than the rule which would be applied to

test a state statute.” Fullilove, supra 584 F.2d 600, 604.

The issue here is whether the Fourteenth Amendment,

absent prior intentional discrimination, and absent any

other firmly established relationship between its practices

- and a compelling state interest, will permit a public

employer to utilize racial or sex-based categories in

employment opportunity decisions to the detriment of all

other innocent applicants and employees.

Additionally, this case deals with the unique and rather

personal claims of individual employees, rather than, the

perhaps less personal interests of corporations, companies,

partnerships and contractors.

5. Even as this petition goes to the printer, we are

informed that the California Supreme Court has decided

Price v. Civil Service Commission, (S.Ct. No. SF 23836).

Although we have not had time to obtain and analyze this

opinion, from our understanding of the reports, the

decision makes a review of the issues raised herein even

more compelling. In Price the Sacramento County Civil

Service Commission adopted a temporary system of quotas

designed to remedy the disproportionate impact on minori-

ties of Sacramento County’s employment practices. There

was no proof of any prior intentional discrimination. The

Supreme Court remanded the case to determine whether

the disproportionate impact resulted from discriminatory

practices of the county.

CONCLUSION

For the foregoing reasons the Petition for a writ of

certiorari should be granted, and the judgment of the

California Court of Appeal reversed.

Respectfully submitted,

Ronautp YANK

CurisTOPHER D. Burpick

Gary M. Messine

CarRouL, Burpick & McDonovucH

Attorneys for Petitioners

(Appendices follow)

Appendices

Appendix A

In the Court of Appeal of the State of California

First Appellate District, Division Four

1 Civil 42545

(Super. Ct. No. 700048)

Wayne Minnick et al.,

Plaintiffs and Respondents,

Vs.

California Department of Corrections

et al.,

Defendants and Appellants. :

[Filed July 27, 1979]

The California Department of Corrections and Jero J.

Enomoto, its director, appeal from a declaratory judgment

which states that they have violated specified constitutional

and statutory provisions “by discriminating by reason of

sex and by reason of ethnic background in hiring and pro-

motion of employees” in the Department. The judgment

also orders, and the court issued, a “Permanent Injunc-

tion” restraining the Department and Enomoto from en-

gaging in certain personnel practices in the future.

The judgment was entered after a nonjury trial of the

issues joined on an amended complaint filed by respond-

ents Wayne Minnick, Henry J. Darden, and California

Correctional Officers Association (“CCOA”) in 1976. Be-

cause of material changes in the direction and reach of

respondents’ action after that, the judgment grants only

part of the relief they initially sought. It also reflects an

A-2

application of the California Supreme Court’s 1976 deci-

sion in the celebrated Bakke case. (Bakke v. Regents of

the University of California (1976) 18 Cal.3d 34.) That

decision (hereinafter cited as “California Bakke”) has been

substantially superseded by the United States Supreme

Court’s resolution of the same case during the pendency of

this appeal. (University of California Regents v. Bakke

(1978) 438 U.S. 265 [“U.S. Bakke’’].) These chronological

factors, and other problems, require that the extensive

record be summarzied in close detail.

The Pleadings

Respondents Minnick and Darden are male Caucasians

employed by the Department as correctional officers in the-

State prison system. They are also members of the CCOA,

a Statewide organization. These facts, and the identities

of the various defendants, were alleged in the amended

complaint filed in 1976. The defendants named in it included

the Department and Enomoto, who was sued in his rep-

resentative capacity as its director.’

In each of four counts pleaded in the amended complaint,

4 respondents made conventional allegations to the general

effect that Minnick and Darden were entitled to maintain

the action as a class action “on behalf of themselves and

on behalf of all other employees of the Department of

Corrections, insofar as such employees are disadvantaged

*The defendants named in the amended complaint also included

Carlos Sanchez, who was similarly sued in his capacity as assistant

director of the De ent; the State Personnel Board; and the

“State of California” as such. These parte later disappeared from

the action under circumstances which need not be described, leav-

ing the Department and Enomoto as the sole defendants and

appellants.

8 Sr Oe ee aS ee SS Ee ee

A-3

and/or find themselves judged with regard to hiring and

promotional policies on the basis of their sex and/or race.”

As pertinent here, it was further alleged in each count

that the named defendants (see fn. 1, ante) had “dis-

criminated” againts Minnick, Darden, and other employees

of the Department “on the grounds of race, national origin,

and sex,” in the “carrying-out” of a so-called “Affirmative

Action Program”; that specified aspects of the program

were not being “contested” by respondents, but that its

operation had caused discriminatory treatment of Minnick

and Darden in described episodes in which each had been

denied promotion in his employment by reason of his race

and sex and “the race and/or sex of the person actually

promoted” in preference to him; that each had exhausted

his administrative remedies; and that CCOA had been

“damaged” by the described employment practices because

they frustrated its objectives as “an organization actively

opposed to racism and sexism, and working actively to

increase the unity of all correctional officers ... .” It was

alleged in a perorative paragraph that Minnick and Darden

had been and will continue to be “denied promotional em-

ployment opportunities . . . on the basis of their race

and/or the basis of their sex” in violation of the Four-

teenth Amendment of the United States Constitution, sec-

tions 7 and 8 of article I of the California Constitution,

and various federal and California statutes.

According to the fair import of the allegations in the

various counts, and of multiple prayers which followed

them, Minnick and Darden sought mandatory injunctions

requiring their promotions and the recovery of damages

A-4

in the form of back pay for the higher positions allegedly

denied them. According to the same sources, all three re-

spondents sought an award of attorneys’ fees alleged as

“damages” they had incurred; preliminary and permanent

injunctions restraining the defendants from further car-

rying out of the discriminatory personnel policies alleged ;

and a declaratory judgment to the effect that the policies

were “unconstitutional, illegal, and void.”

In an answer filed in 1976 by the defendants then named

in the action (see fn. 1, ante), they pleaded material admis-

sions and denials and several affirmative defenses.

The Trial

Respondents obtained an “Order To Show Cause Re

Preliminary Injunction” which was set for hearing in early

1976 but ordered off calendar to permit discovery pro-

ceedings. The parties later stipulated that a rescheduled

hearing on it would serve as a trial of the action and that

jury trial was waived. Pursuant to a bifurcation agreed

upon still later, the issues of “liability” (as distinguished

from “damages”) were tried first. The cause was tried on

these bases between August and October of 1976.

The Evidence

Testimony from more than 30 witnesses, and 58 docu-

mentary exhibits, were received at the trial. The volu-

minous briefs argue the consequent mass of evidence in

terms of what it shows, but neither side had adequately

summarized it. The record supports the following recitals,

which will suffice for purposes of this appeal:

A-5

The Department adopted a documented “Affirmative

Action Plan” (hereinafter “AAP”) in 1974. Its preamble

states in pertinent part that the Department’s “policy” is

“to provide equal employment opportunities for all persons

on the basis of merit and fitness and to prohibit discrim-

ination based on race, sex, color, religion, national origin,

or ancestry in every aspect of personnel policy and prac-

tices in the employment . . . and treatment of employees.”

According to its terms, the principal objectives of the AAP

include (1) increasing the number of female employees in

the Department to a percentage level equivalent with that

in the total “California labor force” in April, 1970, and

(2) increasing the number of “minority” employees to a

level equalling at least 70! of any given “minority” in the

inmate population of the Department (i.e., State prison-

ers).

The projected increases were variously broken down and

allocated among segments of the Department and specified

ethnic “minority” groups (defined as “Black,” “Asian,”

“Spanish surname,” “Native American,” and “other ex-

traction”), but they respectively translated into “overall”

goals of “38% women employed” and “36% minorities

employed.” The AAP indicated, and there was evidence,

that the desired “minority” level would serve inmate-

related objectives of the Department by improving rela-

tionships with prisoners and reducing severe racial con-

flict and violence within the State prison system.

The percentage of female and minority employees in the

Department were markedly below those projected in the

AAP when it was adopted. The attainment of both percent-

A-6

ages was targeted to be reached by July, 1979. Although

their realization was consequently directed to the hiring

of new female and minority employees, the AAP provided

that the underlying policy of nondiscrimination was to be

applied in all areas involving the promotion, transfer,

training, and work assignments of Department personnel.

There was evidence that various male Caucasian em-

ployees had been denied promotic® or transfer in instances

where preferences had been given to female or minority

members. Proof presented by respondents Minnick and

Darden supported the inference that each had been denied

promotion in deference to a female or minority candidate,

and it was shown that each had pursued a “grievance” to

the State Personnel Board without success. It was also

established, however, that neither had been eligible for

promotion under conventional civil service rules which

applied irrespective of the AAP or its implementation.

Various supervisory employees of the Department testi-

fied that preference for promotion or transfer was not

given to female or minority employees in specified seg-

ments of the Department ater 1974. There was thus a

conflict in the evidence as to how widely the preferential

policies expressed in the AAP had been pursued within

the Department. According to all the evidence of instances

where they had been applied, “preference” was given to

female sex or minority status only to the extent that each

was considered a “plus” factor in the assessment of a par-

ticular employee for promotion or transfer. Some evidence

supported the inference that this “plus” had occasionally

contributed to the promotion or transfer of the preferred

employee ahead of nonpreferred candidates who were

A-7

otherwise more qualified for the new position. There was

no evidence that such “preference” had ever resulted in

the promotion or transfer of an employee who was not

qualified to hold the position.

Vacancies in specific positions were occasionally left

open, and promotions or transfers to them were sometimes

delayed, until qualified female or minority employees could

be found to fill them. Some of these positions were labelled

“female only,” or with words similarly referring to sex

(including “male only”) or to race or ethnic background.

There was no evidence that any specific number or per-

centage of positions were reserved for members of either

sex or of any racial or ethnic group.

In response to an interrogatory, the Department in

effect denied that it had “wilfully, with a specific intent,

engaged in illegal and/or improper discrimination against

any person with regard to employment opportunities . . .

_ on the basis of a person’s race, color, creed, sex or national

origin.” It added, “... however, that as a result of its past

hiring and promotion practices and procedures, there has

been an adverse discriminatory impact on certain minori-

ties and the female sex in terms of initial hiring and also

promotion.” This statement was the only substantial ref-

erence in the evidence to the effect that the Department’s

personnel practices had discriminated against females and

minorities in the “past.” The exercise of “preference” in

their favor in recent years, as described above, was limited

to cases involving the promotion, transfer, or work assign-

ment of employees only. There was no substantial evi-

A-8

dence of any instance in which it had been exercised in the

“initial hiring” of a new employee.

Post-Trial Proceedings

The cause was submitted on November 23, 1976. On

January 5, 1977, the trial court filed a memorandum deci-

sion indicating its intention to grant injunctive relief to

respondents, stating its reasons, and directing respondents

- to prepare an appropriate order and findings of fact and

conclusions of law. Protracted proceedings followed, dur-

ing 1977, before findings were settled and signed. The

pertinent events were these:

On February 28, the court made an order granting and

issuing the equivalent of an injunction pendente lite which

restrained the Department and Enomoto from performing

any act of “hiring or promoting any employee in the De-

partment ... in which preference is given to race, color,

sex, or national origin until the further order of this

court.’”

In April, the Department and Enomoto moved for an

“order augmenting the record” to include a massive array

of sworn declarations and other documents for the purpose

of showing that the AAP had been “designed to rectify”

past personnel practices which had operated to discrim-

inate on racial and other grounds.* The motion was orally

denied at a hearing conducted on May 5.

*The Department and Enomoto joined in an appeal taken from

this order on March 4. That appeal was never perfected, and the

briefs on this one do not mention it. For these reasons, and for

recordkeeping purposes, we hereinafter dismiss it. ;

‘Respondents moved “in the alternative” for an order “reopening

the case for further evidence of the past discriminatory practices

A-9

In June, respondents moved for an order certifying

their action as a class action. At a hearing on this motion

in July, the court indicated its view that respondents Min-

nick and Darden were not entitled to damages, nor to main-

tain a class action for damages because they had not shown

that they had been denied promotion by reason of the dis-

criminatory personnel practices alleged. The court never-

theless stated that it had perceived such practices to exist,

and that it desired to grant declaratory relief against them.

A discussion followed as to whether Minnick, Darden and

CCOA still had “standing” to obtain that relief in the ac-

tion. The court accepted a stipulation that they did, denied

the motion for certification, and ruled “money damages”

out of the case.* On August 2, the court made formal orders

denying the motion for certification and the Department’s

and EKnomoto’s motion for an order augmenting the record.

The Findings and Judgment

The thus-narrowed issues in the action were resolved in

the findings of fact and conclusions of law, which were

settled after lengthy hearings. The trial court signed and

filed them on October 11, 1977. The declaratory judgment

which the . . . Affirmative Action Plan was ee to rectify.” On

the alternative motion, the accompanying declarations and other

documents were presented as an offer of proof.

‘The court stated in these respects as follows: “Then it’s stipu-

lated or conceded that the individual plaintiffs in this action

[Minnick and Darden] and the Association [CCOA] . . . have

standing in this action, and that the court has jurisdiction in the

matter to the extent that if the agg and evidence will support

it, to grant injunctive relief that would preclude the Department

from in any manner, shape, or form, discriminating against or in

favor of anyone in that Department by reason of race, color,

place of origin, sex, and so on. . . . I will make a ruling that I'll

not grant you your motion to consider this a class action, and I]

will deny your seeking monetary damages.” (Emphasis added. )

A-10

and the “Permanent Injunction” were entered the next

day.

The pertinent findings (nos. 8, 10, 13, 16 and 19) are

quoted in the margin.’ Two of the conclusions of law were

°“8, Defendants Department .. . and Jeri J. Enomoto have dis-

criminated and are continuing to discriminate by reason of sex

and by reason of ethnic background in hiring and promotion of

employees in the Department. In so do'ng, the defendants were

motivated at least in part by ... [the] ... Affirmative Action Plan.

. . . In so doing, preferences result in favor of certain ethnic

groups, or in favor of one sex to the detriment of the other, and

not solely on the qualifications of the individuals involved, or their

merits.” (Emphasis added. )

“10. All employees of the Department, including the plaintiff[s]

. .. Minnick and . . . Darden, have been discriminated against by

reason of their race.”

“13. There has been long standing discrimination against

minorities and women by our society. However, the acts com-

plained of in... [this] . . . action are not justified by, nor do they

remedy, past wrongs by society against any such minorities or

women, Furthermore, the acts complained of, and more particu-

larly described in these Findings of Fact and Conclusions of Law,

operate to the detriment of innocent employees of the Department

who played no role in any previous discrimination by portions of

our society.”

“16. Defendants have no scientific or objective basis whatsoever

by which they classify people into one racial category or another,

for purposes of granting preferences or imposing detriments con-

cerning job opportunities with defendants. Defendants have no

dispute-resolution procedure by which a person seeking to be

placed in one category, instead of another, can complain, or by

which a person complaining of the categorization of another person

may complain.”

“19. The unique and sensitive nature of the functions of the

Department . . . and the peculiar difficulties inherent in the

administration of California’s prison system require the Depart-

ment to exercise broad discretion in making job assignments and

in determining the employment responsibilities of its employees.

Because of the conditions and circumstances within California

prisons and throughout the Department .. . , it is necessary for

the Department to consider, among other factors, the composition

of the existing work force and of the inmate population, and the

race and sex of employees, in order to serve the compelling state

A-11

substantially copied into paragraphs of the judgment

which read as follows:

“1. Defendants ... Department ... and... Enomoto,

by discriminating by reason of sex and by reason of ethnic

background in hiring and promotion of employees... ,

have violated and are continuing to violate [1] the Four-

teenth Amendment to the United States Constitution, [2]

Article I, Sections 7 and 8 of the California Constitution,

[3] Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000e et seq., [4] 42 U.S.C. §§ 1981 and 1983, [5] Califor-

nia Labor Code $1410 et seq., and [6] California Govern-

ment Code § 50084.

6“

i ae

“3. Defendants ..., by engaging in employment prac-

tices above-described and by the arbitrary and capricious

nature of the racial categorization process (as particularly

described in the Findings of Fact and Conclusions of Law)

utilized by said defendants, have deprived and are con-

tinuing to deprive employees in the Department .. . of

substantive and procedural due process of law within the

meaning of both the Fourteenth Amendment to the United

States Constitution and within the meaning of Article I,

Section 7 of the California Constitution.’

interest in promoting the safety of correctional officers and in-

mates, encouraging inmate rehabilitation, minimizing racial ten-

sions, and ering orderly and efficient prison management.”

(Emphasis added. )

°The constitutional and statutory provisions cited in paragraph

1 (which is here quoted with some corrective editing vm 9 our

numbers added) were those cited in respondents’ amended com-

plaint as later amended again. cernerane 1 and 3 of the judgment

aa! ype the substance of the trial court’s conclusions of law

nos

. 2 and 3, respectively. Its conclusion of law no. 1 stated that

“[p]laintiffs [respondents] are entitled to injunctive relief.”

A-12

In a trailing provision of the judgment, the court or-

dered that “{a] Permanent Injunction attached hereto,

marked Exhibit ‘A’ and incorporated herein by reference,

be issued in this case.” The “Permanent Injunction” was

thereupon signed and issued by the court, and entered on

October 12, 1977, as a separate document.’

The Appeal

The Department and Enomoto filed a notice of appeal

on October 14, 1977, stating that they appeal from the

judgment and the “Permanent Injunction.” They subse-

quently petitioned this court for a writ of supersedeas.

We granted the petition and entered an order staying en-

forcement of the judgment and the “Permanent Injunc-

tion” pending determination of the appeal.

REVIEW

Paragraph 1 Of The Judgment

This paragarph is to be reviewed, separately, in light

of the successive constitutional and statutory provisions

"The document is addressed to the Department, Enomoto as its

director, “their officers, agents, servants and employees, and all

persons acting in concert with them.” It opens with recitals which

refer to the trial of the action and to “good cause appearing” for

the following language: “IT IS HEREBY ORDERED that...

[the addresses] . . . shall be, and they hereby are, enjoined and

restrained from engaging in. . . any and all of the following acts:

[{] (1) From hiring or promoting any employee in the Department

. in which [sic] preference, advantage, or benefit is given to

race, color, sex, or national origin. [{]] (a) Provided, however, that

nothing in this order shall prevent any person, in determining the

assignments and job responsibilities of employees of the Depart-

ment... , from considering, among other relevant factors, the race

and sex of the employees in question. [{] (b) Provided, however,

‘male only,’ ‘female only, and bi-lingual certifications may be

requested and/or granted when the job-related aspect of the cer-

aa can be objectively and demonstrably shown and estab-

ished. ...

A-13

it declares the Department and Enomoto to have “vio-

lated.” (See the judgment as quoted in the text at fn. 6,

ante.)

The Equal Protection Clause

Of The Fourteenth Amendment

Although the first citation in paragraph 1 refers only to

“the Fourteenth Amendment to the United States Constitu-

tion,” it is undisputed that the reference is to the Equal

Protection Clause.’ The Bakke litigation and its overlapping

chronology are pertinent for this reason. The California

Supreme Court decided Bakke on September 16, 1976 (Cali-

fornia Bakke, supra, 18 Cal.3d at p. 34), during the trial

of this case and a full year before it was decided in 1977.

The superseding decision of the United States Supreme

Court emerged on June 28, 1978 (U.S. Bakke, supra, 438

U.S. at p. 265), several months after this appeal was taken.

Both decisions require discussion, but neither of them

need be analyzed at length. Both courts ordered the plain-

tiff admitted to a medical school operated by the Univer-

sity of California after he had successfully challenged its

“special admission program.” (California Bakke, supra, 18

Cal. 3d at pp. 63-64; U.S. Bakke, supra, 4388 U.S. at pp.

281, 320.) A formula employed in the program effectively

limited eligibility for 16 student seats at the school (out

of 100) to applicants who were members of specified racial

®The clause appears in its context as follows: “. . . No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, without due process

of law; nor deny to any person wi its jurisdiction the equal

ae a of the laws.” (U. S. Const., 14th Amend., § 1 [emphasis

added]. )

A-14

or ethnic minorities. (U.S. Bakke, supra, 488 U.S. at pp.

273-275.)

The California Supreme Court held that a “strict scru-

tiny” test was to be applied because of the racial classifica-

tion thus effected (California Bakke, supra, 18 Cal. 3d at

pp. 49-50), found from its application that the program

violated the Equal Protection Clause because the rigid

and exclusive racial quotas employed in it served no com-

pelling governmental interest not obtainable by less intru-

sive means (id., at pp. 52-62), and produced a result which

we may treat in two parts. Part 1 declared the program

unconstitutional under the Equal Protection Clause. (Jd.,

at pp. 62-63.) Part 2 effectively enjoined the University

from giving any consideration to the race of an applicant

seeking admission to the medical school. (See id., at pp. 55,

61-63; U.S. Bakke, supra, 438 U.S. at pp. 279, 320.)

In reviewing parts 1 and 2, all nine members of the

United States Supreme Court substantially agreed that

the racial classification in the program was “suspect” for

““ ?

equal protection purposes and that the “strict scrutiny’

test was accordingly to be applied in determining whether

the program served a compelling governmental interest.

(U.S. Bakke, supra, 438 U.S. at pp. 287-305, 355-362.) Five

members thereupon joined in affirming part 1. (/d., at pp.

271, 319-320.) One of these five (Justice Powell) joined

four other members in a net result which reversed part 2.

(Id., at pp. 272, 320, 325-326, 379.)

The present trial court had meanwhile followed the all-

inclusive proscription of part 2 when it found and de-

elared, in 1977, that the Department and Enomoto had

A-15

“violated” the Equal Protection Clause by extending “pref-

erences” to employees based on race or sex. (See finding

no. 8 in fn. 5, ante.) Its application of part 2 at that time

was entirely proper, but the question now is whether the

declaration may stand in light of U.S. Bakke. We hold that

it cannot.

Justice Powell’s opinion in U.S. Bakke establishes the

reasoning and guidelines under which consideration may

be given to the race or ethnic background of an applicant

for admission to a State-operated school reached by the

Fourteenth Amendment. (See U.S. Bakke, supra, 438 U.S.

at p. 287.) Such consideration is permitted by the Equal

Protection Clause because it is necessary to promote the

“compelling” interest of the State in attaining “ethnic

diversity” among the school’s students. (Id., at pp. 311-

315.) Thé Clause nevertheless requires a school pursuing

that objective to do it in such way that (1) “... race or

ethnic background may be demed a ‘plus’ in a particular

applicant’s file, yet . . . does not insulate the individual

from comparison with all other candidates for the available

seats”; and (2) a camlidate not credited with that “plus”

will be “fairly and competitively” evaluated for all the

seats without being “totally excluded from a specific per-

centage” of them which has been restricted to a particular

racial or ethnic group. (/d., at pp. 316-319.)

This language closely fits the Department’s personnel

practices challenged here. In its finding no. 19, the trial

court effectively determined that the practices apply the

prison-related realities of race and sex to the point of pro-

moting a “compelling state interest” in a safe and efficient

A-16

correctional system. (See fn. 5, ante.) The finding is sup-

ported by the evidence. The “interest” mentioned in it

lacks the constitutional basis of the University of Califor-

nia’s interest in attaining “ethnic diversity” among its stu-

dents (see U.S. Bakke, supra, 438 U.S. 265 at p. 313), but

safety and efficiency in the prisons of the same State are

no less “compelling.” The Department is pursuing those

objectives by assigning a female or minority employee a

“plus” in competition for promotion or transfer. The quali-

fications of other employees in the competition are still

“weighed fairly and competitively.” (See id., at pp. 317-

318.)

The Department’s AAP refers to the realization of “38%

women employed” and “36% minorties employed” within

five years. This language sounds in “quota” terms, but

neither percentage figure bespeaks a “quota” of the type

proscribed in Justice Powell’s opinion in U.S. Bakke. Each

is an optimum “quota” to the extent that it defines a goal

to be attained in the future. Neither is a functional “quota”

which now operates to place either—or any—percentage

of positions in the Department beyond the reach of male or

nonminority employees. (Compare U.S. Bakke, supra, 438

U.S. 265 at pp. 275, 319.) The distinction was recognized in

finding no. 19, where the trial court found partial motiva-

tion for the Departinent’s practices in the AAP but dis-

crimination in the practices alone. (See fn. 5, ante.) The

“Permanent Injunction” restrains certain aspects of the

practices but not the implementation of the AAP as such.

(See fn. 7.)

A-17

The terminal question is whether this record supports

the declaration, in paragraph 1 of the judgment, that the

Department and Enomoto violated the Equal Protection

Clause by “discriminating” on the bases of race and sex

in the “hiring and promotion of employees.” The declara-

tion rests on the trial court’s finding (no. 8) that they had

“discriminated” in those respects by applying personnel

practices from which “preferences result in favor of cer-

tain ethnic groups or... of one sex.” (See fn. 5, ante.) Ac-

cording to our review of the evidence, it does not support

a finding that “preferences result” from the practices in

favor of males or in the “hiring” of employees. Finding no.

8 therefore fails to support the declaration in either re-

spect.

The practices otherwise identified in the finding have

just been examined in light of U.S. Bakke and under the

“strict scrutiny” it commands. We conclude that they are

permitted by the Equal Protection Clause within the lim-

ited extent that noncontrolling “preferences result in favor

of certain ethnic groups” for purposes of promotion or

transfer of personnel within the Deyartment, because they

are necessary to promote the compelling interest of this

State in the proper management of its correctional system.

For the same reasons, they are permitted insofar as the

same limited “preferences result” in favor of women. Find-

ing no. 8 accordingly fails to support the declaration that

the Department and Enomoto violated the Equal Protec-

tion Clause in any respect.

We move to other constitutional and statutory violations

charged in paragraph 1 of the judgment. We preliminarily

A-18

observe from the record that the trial court placed almost

exclusive emphasis on the violation of the Equal Protection

Clause it declared first, and that the others trailed it into

paragraph 1 in the form of little more than an omnibus

recital. We may examine them more briefly for that reason.

The California Constitution

The court further declares in paragraph 1 that the

Department and Enomoto, “by discriminating ... ,” have

violated article I, sections 7 and 8, of the California Con-

stitution.® Again, the record demonstrates that the refer-

ence to section 7 is to its equal protection language alone.

(See fn. 9, ante.) The reference excludes the declaration

from the reach of U.S. Bakke because the constitutional

issues raised in that case were decided under the cor-

responding provisions of the Fourteenth Amendment.

(U.S. Bakke, supra, 438 U.S. 265 at pp. 271, 320.)

Decisions of the United States Supreme Court defining

“fundamental civil rights” under the federal Constitution

“are persuasive authority to be afforded respectful con-

sideration, but are to be followed by California courts only

when they provide no less individual protection than is

guaranteed by California law.” (People v. Longwill (1975)

°These sections respectively provide:

Ty. te) A | sage may not be deprived of life, liberty, or prop-

eh without due process of law or denied equal protection of the

aws.

“(b) A citizen or class of citizens may not be granted privileges

or immunities not granted on the same terms to all citizens. Privi-

leges or immunities granted by the Legislature may be altered or

revoked.

“8. A person may not be disqualified from entering or pursuing

a business, profession, vocation, or employment because of sex,

race, creed, color, or national or ethnic origin.”

A-19

14 Cal.3d 943, 951, fn. 4; Serrano v. Priest (1976) 18 Cal.3d

728, 764.) Respondents have asserted “fundamental civil

rights” in this action, but we are not persuaded that the

rationale of U.S. Bakke provides them with “less individ-

ual protection than is guaranteed by California law.”

Under that rationale, the evidence does not support the

declaration that section 7 of article I has been violated.

Section 8 of article I does not parallel a literally equiv-

alent provision in the federal Constitution. Respondents

Minnick and Darden, and other employees of the Depart-

ment who claim to be disaffected by its preferential per-

sonnel practices, are “pursuing . . . employment” within the

meaning of section 8. (See fn. 9, ante.) The limited “pref-

erences” given to certain employees, for purposes of

promotion and transfer, are based on “race” and “sex”

within the same meaning. The “preferences” do not exclude

others from eligibility for promotion or transfer, nor from

having their own qualifications “weighed fairly and com-

petitively” in the process. (See U.S. Bakke, supra, 438 U.S.

265 at pp. 317-318.) None of them is “disqualified” in any

respect within the meaning of section 8. The evidence does

not support the declaration that the section has been

violated.

Federal Statutes

Paragraph 1 declares a violation of “Title VII of the

Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)” of

“42 U.S.C. $§ 1981 and 1983.” Title VII does not reach the

Department, a public employer, becanse it was enacted by

the Congress “pursuant to the Commerce power to regulate

A-20

purely private decisionmaking ... .” (United Steelworkers

of America, AFL-CIO-CLC v. Weber (1979) ...... Lie. ee

des [47 U.S.L.Week 4851, 4854-4855], fn. 6.)

“42 U.S.C. §§ 1981 and 1983” are vintage statutes which

operate to guarantee a civil remedy for violations of the

Fourteenth Amendment. (See Monroe v. Pape (1961) 365

U.S. 167, 170-172; Rizzo v. Goode (1976) 423 U.S. 362, 370-

371.) They have no application here. The declaration that

the Department and Enomoto “violated” any of these

statutes is erroneous.

State Statutes

Paragraph 1 declares violations of “California Labor

Code §1410 et seq.” (the California Fair Employment

Practices Act) and “Government Code § 50084.” Respon-

dents state that they “agree” that these statutes “provide

no greater legal bases for stating a cause of action than do

the Equal Protection Clauses of the United States and

California Constitutions and Title VII of the Civil Rights

Act of 1964.” Our disposition of the points raised on these

various sources therefore disposes of this one. Government

Code section 50084 is inapplicable for the additional reason

that it requires the employment practices of a “local

agency” to conform to the Civil Rights Act of 1964. Neither

the Department nor Enomoto is a “local agency” for pur-

poses of this statute. (See Gov. Code, § 50001.)

Paragraph 3 Of The Judgment

This paragraph declares that the Department and Eno-

moto have deprived emplovees in the Department “of sub-

stantive and procedural due process of law within the

meaning of both the Fourteenth Amendment to the United

A-21

States Constitution and Article I, Section 7 of the Cali-

fornia Constitution.” The reference unmistakably cites t’.

due process clauses of beth sources. (See fns. 8 and 9,

ante.) The declaration rests on the trial court’s finding

no. 16 (quoted in fn. 5), relative to procedural deficiencies

involving the Department’s classification of employees by

race and their opportunity to challenge a racial classifica-

tion by way of administrative review. (See ibid.)

The deficiencies found were not challenged by respond-

ents in this action. Finding no. 16 was made, at the trial

court’s insistence, after it had been shown that racial clas-

sifications were made on the basis of employees’ surnames.

The reference in the declaration to the “arbitrary and

capricious nature” of this procedure derives from observa-

tions in the record that the identification of race by sur-

name is somewhat casual and very possibly inaccurate

(e.g., in identifying the race of a woman married to a hus-

band with an Asian surname). The observations are valid,

but the finding and declaration are not. There is no evi-

dence showing that the asserted deficiencies have ever pro-

duced an erroneous racial classification in fact, nor that

any person has been aggrieved by them in fact. If the evi-

dence dimly supports finding no. 16, the finding itself does

not support the declaration that anyone has been denied

due process of law. The declaration is accordingly errone-

ous.

8. 8 7%

The declarations in paragraphs 1 and 3 of the judgment

are thus unsupported by the record. Its other provisions

are strictly ancillary to those paragraphs. We reserve it

accordingly.

A-22

The “Permanent Injunction”

Although the issuance of this injunction was expressly

ordered in the trailing provision of the judgment quoted

above, it emerged as a separate document in a format recit-

ing “good cause” for its injunctive language. (See fn. 7,

ante.) These factors make it independently appealable as

an “order granting . .. an injunction” (Code Civ. Proc.,

§ 904.1, subd. (f)) [sic], but it will not stand by itself. Al-

though the exceptions stated in it (“Provided, however” )

appear to make allowance for recognition of employees’

race and sex in the Department’s work assignments, its

express injunction against giving “advantage” or “benefit”

to race or sex would prohibit the competitive “plus” now

given to some female or minority employees under consid-

eration for promotion or transfer. Because U.S. Bakke

permits the “plus,” the injunctive language is overbroad

in itself.

It is also based on the trial court’s conclusion of law that

respondents were “entitled to injunctive relief” against the

personnel practices deemed to have “violated” the law as

declared in the other conclusions of law and in the judg-

ment. (See fn. 6, ante.) Because we have now held that they

have not “violated” the law, the injunction must fall with

the judgment. We reverse it.

The Motion T. Augment Or Reopen

The Department and Enomoto made this motion, five

months after the case had been submitted for decision, for

the purpose of proving past discrimination by the Depart-

ment on the bases of race and sex. (See the text at fn. 2,

ante.) In ordering it denied, the trial court remarked that

it was “irrelevant.” That characterization was not given it

A-23

in the formal order denying it, but the reasons the court

deemed it “irrelevant” were later stated in finding no. 13.

(See fn. 5.)

The court did not abuse its discretion in denying the

motion, which was made by afterthought and much too late.

We need not decide the relevance of the evidence offered,

nor the validity of finding no. 16. If the case is to be retried,

Justice Powell’s decision in U.S. Bakke will be pertinent to

the determination of either question. (See U.S. Bakke,

supra, 438 U.S. 265 at pp. 307-310.)

Respondents’ “Standing”

There is no claim of error in this regard, but we per-

ceive problems with respondents’ “standing” which will

recur if the case is to be retried. The problems appeared

when they moved for an order certifying their action as a

class action after it had been recognized that respondents

Minnick and Darden were not entitled to damages or

injunctive relief as individuals. The motion was denied

when the parties stipulated that all three respondents had

“standing” to obtain declaratory relief, and that the trial

court had “jurisdiction” to grant it. (See fn. 4, ante.)

Although respondents were not permitted to proceed in

a class action, the results had the dimensions of class relief.

There is a real question whether Minnick and Darden may

act as representatives of other employees if they are not

entitled to relief as individuals. Another question is

whether all employees in the Department may be repre-

sented by the CCOA, whose membership is apparently

limited to correctional officers only. If their “standing” to

proceed with the litigation could be conferred by stipula-

A-24

tion, the trial court’s jurisdiction could not. (1 Witkin,

California Procedure (2d ed. 1970) Jurisdiction, § 10, pp.

534-536.) These problems require examination if the case is

to be retried.

The appeal purportedly taken on March 4, 1977, is dis-

missed. The “Judgment And Declaratory Judgment” and

the “Permanent Injunction” entered on October 12, 1977,

are reversed. The stay order made by this court on Novem-

ber 4, 1977, is vacated.

CERTIFIED FOR PUBLICATION.

Rattigan, J.

We concur:

Caldecott, P. J.

Christian, J.

Appendix B

Court of Appeal of the State of California

First Appellate District

Division Four

No. 42545

Wayne Minnick et al.,

Plaintiffs and Respondents,

VS.

California Department of Corrections

et al.,

Defendants and Appellants.

[Filed August 23, 1979]

BY THE COURT:

The typewritten opinion filed herein on July 27, 1979,

is modified as follows:

On page 6, strike lines 17, 18, and 19, and insert: “38%

women employed” and “36% minorities employed.” There

was evidence that the attainment of these goals would

serve inmate-related objectives of

On page 24, strike the eight-line paragraph commencing

with the words “Paragraph 1 declares” and insert the fol-

lowing two paragraphs in its place:

It is further declared in paragraph 1 of the judgment

that the Department and Enomoto, “by discriminating

B-2

..., have violated federal statutes cited as “Title VII

of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.)”

and “42 U.S.C. $$ 1981 and 1983.” As amended, Title VII

of the Civil Rights Act of 1964 effectively prohibits dis-

crimination by an “employer,” in any area of nonexcepted

employment (see 42 U.S.C. § 2000e-1), on the basis of an

“individual’s race, color, religion, sex, or national origin.”

(Id., § 2000e-2, subd. (a).) The prohibition reaches the De-

partment, a public employer, as well as private employers.

(Id., § 2000e, subds. (a), (b); Dothard v. Rawlinson (1977)

433 U.S. 321, 331-332, fn. 14.)

U.S. Bakke did not involve Title VII as such, but a clear

majority of the United States Supreme Court has since

held, on the basis of the congressional intent underlying the

title, that it does not prohibit private employers from vol-

untarily adopting “race-conscious affirmative action plans.”

(United Steelworkers of America, AFL-CIO-CLC v. Weber

et al. (1979) ........ if . Renee lal re [99 S.Ct. 2721, 2727-

2730].) The Department has done precisely that, and the

trial court found from substantial evidence that the plan it

adopted had partially “motivated” the personnel practices

challenged in this action. (See finding no. 8, quoted in fn. 5,

ante.) The fact that the Department is a public employer

suggests no basis for excluding it from the reach of the

congressional intent and objectives analyzed in United

Steelworkers. We accordingly perceive no violation of Title

VII in the practices the Department’s AAP has “moti-

vated.” The contrary declaration in paragraph 1 of the

judgment is erroneous.

B-3

On Page 24, strike the last two lines and insert: Depart-

ment and Enomoto “violated” either of them is erroneous.

The petition for rehearing is denied.

Dated August 23, 1979

Caldwell, P.J.

Appendix C

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

Nov. 8 1979

I have this day filed Order

HEARING DENIED

In re: 1 Civ. No. 42545

Minnick

vs.

California Department of Corrections

Respectfully,

G. E. BISHEL

Clerk

Appendix D

Superior Court of the State of California

for the City and County of San Francisco

Department X2

[Filed Jan. 5, 1977]

January 5 1977

No. 700 048

Wayne Minnick and

Henry J. Darden, et al.

Plaintiff.

VS.

California Department of Corrections:

Jeri J. Enomoto, Director of the Cali-

fornia Department of Corrections; State

Personnel Board of the State of Cali-

fornia

Defendant.

;

Notice of Intended Decision

The testimony and documentary evidence herein show,

and defendants admit, that defendants have carried on a

campaign to, and they do now, select applicants for employ-

ment and for promotion based on their sex and on their

racial background or ancestry.

Defendants seek to justify their actions on the basis that

while the sex of an applicant is one of the factors con-

sidered, the applicant must be otherwise qualified for the

LE OR

D-2

duties to be performed. Sex or racial background is not

the sole factor considered. Plaintiffs on the other hand

assert that the hiring or promotion of a person based in

whole or in part on sex or racial background or ancestry is

unconstitutional and void.

The Court agrees with plaintiffs.

Let a Writ issue directing that defendants, their agents

and employees are enjoined and precluded from consider-

ing as a factor for employment or for the promotion of a

candidate his sex, race or national origin.

Counsel for plaintiffs will prepare an appropriate order

and will prepare Findings of Fact and Conclusions of Law

consistent with the foregoing.

Dated: January 5, 1977.

/s/ Byron Arnold

Judge

MINUTE ORDER

Appendix E

Ronald Yank, Esq.

Carroll, Burdick & McDonough

Counselors and Attorneys at Law

One Ecker Building, Suite 400

Ecker & Stevenson Streets

San Francisco, California 94105

Telephone (415) 495-0500

Attorneys for Plaintiffs

In the Superior Court of the State of California

in and for the City and County of San Francisco

No. 700 048

Wayne Minnick, et al., 4

Plaintiffs,

VS.

California Department of Corrections,

et al.,

Defendants. :

[Filed Oct. 11, 1977]

Judgment and Declaratory Judgment

The above-entitled matter came on regularly for trial,

which trial commenced on August 23, 1976. The trial was

concluded in October, 1976. The parties submitted Post-

Trial Briefs, and oral argument was held subsequent to the

submission and consideration of same on November 23,

1976.

E-2

Additional hearings were held related to motions filed

by the parties and the scope of relief to be granted by this

Court.

The Court having heard the testimony, received the oral

and documentary evidence, and having considered oral and

written arguments offered by the respective parties, and

having made its Findings of Fact and Conclusions of Law,

and good cause appearing:

IT IS THE DECLARED JUDGMENT OF THIS

COURT that:

(1) Defendants California Department of Corrections

and Jeri J. Enomoto, by discriminating by reason of sex

and by reason of ethnic background in hiring and promo-

tion of employees in the California Department of Correc-

tions, have violated and are continuing to violate the Four-

teenth Amendment to the United States Constitution, Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)

et seq., Article 1, Section 7 and 8 of the California Con-

stitution, 42 U.S.C. §§1981 and 1983, California Labor

Code $1410 et seqg., and California Government Code

§ 5084.

(2) This Court has jurisdiction to grant relief under

each of the above-quoted constitutional provisions and/or

pieces of legislation.

(3) Defendants California Department of Corrections

and Jeri J. Enomoto, by engaging in employment prac-

tices above-described and by the arbitrary and capricious

nature of the racial categorization process (as particularly

described in the Findings of Fact and Conclusions of Law)

utilized by said defendants, have deprived and are con-

E-3

tinuing to deprive employees in the Department of Correc-

tions of substantive and procedural due process of law

within the meaning of both the Fourteenth Amendment

to the United States Constitution and within the meaning

of Article 1, Section 7 of the California Constitution.

IN ADDITION, IT IS HEREBY ORDERED that:

(1) A Permanent Injunction, attached hereto, marked

Exhibit “A” and incorporated herein by reference, be

issued in this case.

(2) Plaintiff’s shall recover their costs in this action.

(3) Plaintiffs shall receive attorneys’ fees in a sum to

be specified in the Memorandum of Costs and Disburse-

ments to be filed herein, subject only to any exceptions that

may be filed and sustained as to the amount thereof.

Dated: October 11, 1977

/8/ Byron Arnold

Judge of the Superior Court

Approved as to form:

Howard, Prim, Rice, Nemerovski,

Canady & Pollak

A PROFESSIONAL CORPORATION

By /s/ STUART R. POLLAK Dated: October 11, 1977

Stuart R. Pollak

Attorneys for California

Department of Corrections and

Jeri J. Enomoto

E-4

Approved as to form:

Office of the

Attorney General

By /s/ GORDON ZANE Dated: October 11, 1977

Gordon Zane

Attorneys for the State

Personnel Board and State of

California

Approved as to form:

Carroll, Burdick & McDonough

By /s/ RONALD YANK Dated: October 11, 1977

Ronald Yank

Attorneys for Plaintiffs

Appendix F

Ronald Yank, Esq.

Carroll, Burdick & McDonough

Counselors and Attorneys at Law

One Ecker Building, Suite 460

Kcker & Stevenson Streets

San Francisco, California 94105

Telephone (415) 495-0500

Attorneys for Plaintiffs

In the Superior Court of the State of California

in and for the City and County of San Francisco

No. 700 048

Wayne Minnick, et al., ;

Plaintiffs,

vs.

California Department of Corrections,

et al.,

Defendants. 7

[Filed October 11, 1977]

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The above-entitled matter came regularly on for trial

on August 25, 1977. The trial proceeded before the Court

sitting without a jury, a jury having been waived by the

parties. Ronald Yank of Carroll, Burdick and McDonough

appeared as attorneys for plaintiffs, and Gordon Zane,

Deputy Attorney General, appeared as attorneys for de-

F-2

fendants. In February, 1977, Stuart Pollak of Howard,

Prim, Rice, Nemerovski, Canady and Pollak, were substi-

tuted as counsel for defendants California Department of

Corrections and Jeri J. Knomoto, Director of the Cali-

fornia Department of Corrections.

The Court, having heard the oral testimony, having

received the oral and documentary evidence, and having

considered oral and written arguments offered by the

respective parties, and having issued its NOTICE OF IN-

TENDED DECISION, filed herein on January 5, 1977,

and being fully advised in the matter, makes the following

FINDINGS OF FACT.

Findings of Fact

(1) At all times herein pertinent plaintiffs Wayne

Minnick and Henry J. Darden, and each of them, were em-

ployees of the Department of Corrections of the State of

California. They are caucasian males.

(2) At all times herein relevant, plaintiff California

Correctional Officers’ Association (hereinafter referred to

as “CCOA”), was and is an “empleyee organization” within

the meaning of California Government Code $3526, and

was and is a recognized agent of correctional officers and

some other employees of defendants for purposes of rep-

resenting those employees in all matters relating to em-

ployment conditions and employer-employee relations, in-

cluding but not limited to wages, hours, and other terms

and conditions of employment, all within the meaning of

California Government Code § 3525, et seq.

F-3

(3) Plaintiff CCOA has fairly and adequately repre-

sented the interests of its members who have been, are

being, or will be disadvantaged by the employment prac-

tices hereinafter described.

(4) At all times herein relevant, defendant California

Department of Corrections was and is an agency of the

State of California entrusted with the official responsibility

of custody of persons convicted of crimes under California

law and sentenced to terms in California correctional facili-

ties. The Department of Corrections (hereinafter “De-

partment”) carries out its responsibilities at least in part

pursuant to California Penal Code § 5000, et seq.

(5) At all times herein relevant, defendant Jeri J.

Enomoto was and is Director of the California Department

of Corrections, and was and is entrusted with the official

responsibility of the statewide administration of Califor-

nia correctional facilities, including the hiring, promotional,

and other job opportunity procedures for the Department.

(6) At all times herein relevant, defendant State Per-

sonnel Board (hereinafter “SPB”) was and is an agency

of the State of California, entrusted with the official re-

sponsibility of overseeing and administering the manner

in which various agencies of the State of California hire

and promote employees of those agencies. The SPB is en-

trusted with administering and overseeing the Civil Service

System by which appointments and promotions are made

in agencies of the State of California.

(7) Defendants Department of Corrections, Jeri J.

Enomoto, and the SPB have all been served in this action,

and have appeared in this action through counsel.

F-4

(8) Defendants Department of Corrections and Jeri J.

Enomoto have discriminated and are continuing to dis-

eriminate by reason of sex and by reason of ethnic back-

ground in hiring and promotion of employees in the De-

partment. In so doing, the defendants were motivated at

least in part by an Affirmative Action Plan, adopted effec-

tive July 1, 1974. A copy of that Plan is defendants’ Ex-

hibit “G” in evidence. The Affirmative Action Plan was

revised effective April 1, 1975. A copy of the revised

Affirmative Action Plan is Exhibit “R” in evidence. In so

doing, preferences result in favor of certain ethnic groups,

or in favor of one sex to the detriment of the other, and

not solely on the qualifications of the individuals involved,

or their merits.

(9) There are certain aspects of the Department’s

affirmative action program which are not contested by

plaintiffs herein. Those include such matters as aggressive

recruiting measures, education for all personnel, including

supervisors in charge of hiring, firing, and promotions,

and special training classes for certain applicant groups

and/or Department employees potentially interested in

promotional opportunities.

(10) All employees of the Department, including the

plaintiff Wayne Minnick and the plaintiff Henry J. Darden,

have been discriminated against by reason of their race.

(11) Plaintiffs Minnick and Darden completed what-

ever exhaustion of administrative remedies might be re-

quired by processing their grievances to and through the

SPB.

F-5

(12) Unless restrained by order of this Court, defend-

ants the Department of Corrections and Jeri J. Enomoto

will continue the discrimination described herein.

(13) There has been long standing discrimination

against minorities and women by our society. However, the

acts complained of in the above-entitled action are not jus-

tified by, nor do they remedy, past wrongs by society

against any such minorities ov women. Furthermore, the

acts complained of, and more particularly described in

these Findings of Fact and Conclusions of Law, operate

to the detriment of innocent employees of the Department

who played no role in any previous discrimination by por-

tions of our society.

(14) Plaintiffs Minnick and Darden, and other employ-

ees, will be affected by future implementation of the em-

ployment practices described herein, with regard to job

opportunities with the Department.

(15) Plaintiffs, and other employees in the work force

of the Department, have no plain, speedy or adequate rem-

edy at law other than the relief prayed for in documents

filed with this Court, with regard to future job opportuni-

ties. Plaintiffs, and other employees employed by the De-

partment, have suffered, and will continue to suffer, ir-

reparable injury and damage in their employment oppor-

tunities, in that they, and each of them, have been and will

continue to be denied job opportunities and employment

with the Department should the Department action as de-

scribed herein not be enjoined.

(16) Defendants have no scientific or objective basis

whatsoever by which they classify people into one racial

F-6

category or another, for purposes of granting preferences

or imposing detriments concerning job opportunities with

defendants. Defendants have no dispute-resolution proce-

dure by which a person seeking to be placed in one category,

instead of another, can complain, or by which a person

complaining of the categorization of another person may

complain.

(17) Plaintiffs have complied with all administrative

remedies they may have had to exhaust under Title VII

of the Civil Rights Act of 1964 by filing timely charges

with the EEOC and by receiving a right-to-sue letter prior

to the end of the trial.

(18) It was not established by competent evidence that

the State Personnel Board, State of California, has en-

gaged in, or endorsed or approved on the part of the De-

partment of Corrections, State of California, a system of

granting illegal preferences in civil service matters to

minorities and/or women which would constitute illegal

discrimination.

(19) The unique and sensitive nature of the functions

of the Department of Corrections and the peculiar diffi-

culties inherent in the administration of California’s prison

system require the Department to exercise broad discre-

tion in making job assignments and in determining the

employment responsibilities of its employees. Because of

the conditions and circumstances within California prisons

and throughout the Department of Corrections, in making

job assignments and in determining employment respon-

sibilities it is necessary for the Department to consider,

among other factors, the composition of the existing work

F-7

force and of the inmate population, and the race and sex

of employees, in order to serve the compelling state inter-

est in promoting the safety of correctional officers and

inmates, encouraging inmate rehabilitation, minimizing

racial tensions, and furthering orderly and efficient prison

management.

Conclusions of Law

From the foregoing Findings of Fact, the Court makes

the following Conclusions of Law:

(1) Plaintiffs are entitled to injunctive relief.

(2) Defendants, Department of Corrections and Jeri J.

Enomoto, by engaging in the employment practices above-

described, have violated and are continuing to violate the

Fourteenth Amendment to the United States Constitution,

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000,

et seq., Article 1, Section 7 and 8 of the California Consti-

tution, 42 U.S.C. $§ 1981 and 1983, California Labor Code

§ 1410, et seq., and Government Code § 500° |. This Court

has jurisdiction to grant relief under each of the

above-quoted constitutional provisions and/or pieces of

legislation.

(3) Defendants, Department of Corrections and Jeri J.

Enomoto, by engaging in the employment practices above-

described, and by the arbitrary and capricious nature of

the racial categorization process they have utilized, haye

deprived and are continuing to deprive plaintiffs and all

other empleyees of the Department of substantive and

procedural due process of the law within the meaning of

both the Fourteenth Amendment to the United States Con-

F-8

stitution and within the meaning of Article 1, Section 7

of the California Constitution. ;

(4) It is not contrary to law for the Department, in

determining job assignments and job responsibilities of

its employees, to consider, among other relevant factors,

the composition by race and sex of the existing work force

and of the inmate population, and the race and sex of the

employees in question.

JUDGMENT IS HEREBY ORDERED TO BE EN-

TERED ACCORDINGLY.

DATED: October 11, 1977

/s/ BYRON ARNOLD

Judge of the Superior Court

Approved as to form:

Howard, Prim, Rice, Nemerovski,

Canady & Pollak

Dated: October 11, 1977

By /s/ STUART R. POLLAK

Stuart R. Pollak

Attorneys for California

Department of Corrections and

Jeri J. Enomoto

F-9

Approved as to form:

OFFICE OF THE

ATTORNEY GENERAL

By /s/ GORDON ZANE

Gordon Zane

Attorneys for the State

Personnel Board and State of

California

Approved as to form:

Carroll, Burdick & McDonough

By /s/ RONALD YANK

Ronald Yank

Attorneys for Plaintiffs

Dated: October 11, 1977

Appendix G

Ronald Yank, Esq.

Carroll, Burdick & McDonough

Counsellors and Attorneys at Law

One Ecker Building, Suite 400

Ecker and Stevenson Streets

San Francisco, California 94105

Telephone (415) 495-0500

Attorneys for Plaintiffs

In the Superior Court of the State of California

in and for the City and County of San Francisco

No. 700 048

Wayne Minnick, et al.,

Plaintiffs,

vs.

California Department of Corrections,

et al.,

Defendants.

[Filed October 11, 1977]

PERMANENT INJUNCTION

To: California Department of Corrections; Jeri J. Eno-

moto, Director of the California Department of

Corrections; and Their Officers, Agents, Servants

and Employees, and all Persons Acting in Concert

With Them:

The above-entitled matter came on regularly for trial,

which trial commenced on August 23, 1976. The trial on

the issue of liability was concluded in October, 1976; the

G-2

parties submitted Post-Trial Briefs; and oral argument

was held subsequent to the submission and consideration

of same on November 23, 1976.

The Court having heard the testimony, received the oral

and documentary evidence, and having considered oral and

written arguments offered by the respective parties, and

having issued its NOTICE OF INTENDED DECISION,

filed herein on January 5, 1977, and good cause appearing:

IT IS HEREBY ORDERED that defendants, California

Department of Corrections, Jeri J. Enomoto, Director of

the California Department of Corrections, and their officers,

servants, and employees, and each of them, and all persons

acting in concert or participating with such parties, entities

or person, shall be, and they hereby are, enjoined and

restrained from engaging in, committing, or performing,

directly or indirectly, or by any means whatsoever, any

and all of the following acts:

(1) From hiring or promoting any empleyee in the

Departinent of Corrections in which preference, advantage,

or benefit is given to race, color, sex, or national origin.

(a) Provided, however, that nothing in this Order shall

prevent any person, in determining the assignments and

job responsibilities of employees of the Department of

Corrections, from considering, among other relevant fac-

tors, the race and sex of the employees in question.

(b) Provided, however, “male only,” “female only,” and

bi-lingual certifications may be requested and/or granted

when the job-related aspect of the certification can be

objectively and demonstrably shown and established.

G-3

(2) From taking any action against any plaintiff in this

action, any witness who testified in the trial or other hear-

ings in this action, or any person who participated in or

cooperated in any way in the prosecution of this action,

or from imposing any detriment whatsoever upon any such

person or party or entity for such involvement in this suit,

including the encouraging of persons to take action against

any such person or party or entity for such involvement

in this action.

Dated: October 11, 1977

By /s/ BYRON ARNOLD

Judge of the Superior Court

Approved as to form:

Howard, Prim, Rice,

Nemerovsky, Canady & Pollak

Dated: October 11, 1977

By /s/ STUART R. POLLAK

Stuart R. Pollak

Attorneys for California

Department of Corrections and

Jeri J. Enomoto

G-4

Approved as to form:

Office of the Attorney General

' Dated: October ...., 1977

By /s/ GORDON ZANE

Gordon Zane

Attorneys for the State

Personnel Board and State of

California

Approved as to form:

Carroll, Burdick & McDonough

Dated: October 11, 1977

By /s/ RONALD YANK

Ronald Yank

Attorneys for Plaintiffs

Appendix H

United States Code Service, L. Ed., USCS Constitution,

Amendment 14, pgs. 444-445:

AMENDMENT 14

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

See. 5. Power to enforce amendment.

The Congress shall have power to enforce, by appro-

priate legislation, the provisions of this article.

United States Code Service, L. Ed., 42 USCS § 1981, pgs.

262-63 :

§ 1981. Equal rights unde: the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses and exactions

of every kind, and to no other. (R. S. ¢ 1977.)

H-2

United States Code Service, L. Ed., 42 USCS §¢ 1983, p. 319:

$1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress. (R. S. § 1979.)

United States Code Service, L. Ed., 42 USCS 4% 2000e,

et seq., pgs. 120, et seq.

§ 2000e-2. Discrimination because of race, color, religion,

Sex or national origin

(a) Employers. It shall be an unlawful employment

practice for an employer—

(1) to fail or refuse to hire or to discharge any in-

dividual, or otherwise to discriminate against any in-

dividual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national ori-

gin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

H-3

(b) Employment agency. It shall be an unlawful em-

ployment practice for an employment agency to fail or

refuse to refer for employment, or otherwise to discrim-

inate against, any individual because of his race, color,

religion, sex, or national origin, or to classify or refer for

employment any individual on the basis of his race, color,

religion, sex, or national origin.

(h) Seniority or merit system; ability tests. Notwith-

standing any other provision of this title [42 USCS §§ 2000e

et seq.], it shall not be an unlawful employment practice

for an employer to apply different standards of compen-

sation, or different terms, conditions, or privileges of em-

ployment pursuant to a bona fide seniority or merit sys-

tem,...

(i) Preferential treatment to Indians living on or near

reservation. Nothing contained in this title [42 USCS

§$ 2000e et seq.] shall apply to any business or enterprise

on or near an Indian reservation with respect to any pub-

licly announced employment practice of such business or

enterprise under which a preferential treatment is given

to any individual because he is an Indian living on or near

a reservation.

(j) Preferential treatment not required on aceount of

numerical or percentage imbalance. Nothing contained

in this title [42 USCS §$§ 2000e et seq.] shall be interpreted

to require any employer, employment agency, labor or-

ganization, or joint labor-management committee subject

to this title [42 USCS §§ 2000e et seq.] to grant prefer-

ential treatment to any individual or to any group be-

H-4

cause of the race, color, religion, sex, or national origin

of such individual or group on account of an imbalance

which may exist with respect to the total number or per-

centage of persons of any race, color, religion, sex, or na-

tional origin employed by an employer, referred or classi-

fied for employment by any employment agency or labor

organization, admitted to membership or classified by any

labor organization, or admitted to, or employed in, any

apprenticeship or other training program, in comparison

with the total number or percentage of persons of such

race, color, religion, sex, or national origin in any com-

munity, State, section, or other area, or in the available

work force in any community, State, section, or other area.

Deering’s California Codes, Government Code Annotated,

Cal. Const. A. 1, §7, pg. 613:

[Privileges and immunities]

No special privileges or immunities shall ever be granted

which may not be altered, revoked, or repealed by the

Legislature; nor shall any citizen, or class of citizens, be

granted privileges or immunities which, upon the same

terms, shall not be granted to all citizens.

H-5

Deering’s California Codes, Government Code Annotated,

Cal. Const. A. 1, §8: pg. 42:

§8. [Discrimination on basis of sex, race, ete.]

A person may not be disqualified from entering or pur-

suing a business, profession, vocation, or employment be-

cause of sex, race, creed, color, or national or ethnic origin.

Deering’s California Codes, Gov. C.A. § 50084, pg. 444:

§ 50084. Hiring practices in conformity to federal act

Each local agency’s hiring practices and promotional

practices shall conform to the Federal Civil Rights Act

of 1964 [28 USCS $1447; 42 USCS §§ 1971, 1975a-1975d,

2000a-2000h].

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.