Petition — District Attorney of Sacramento County v. Sacramento County Civil Service Commission

Supreme Court brief1980

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Text

JUN 18 1980

HAEC RODAK, JR., CLERR

No. a

In the Supreme Court

OF THE v4 9 " 1 9 9 6

United States

OctoserR Term, 1979

District ATTORNEY For Tue County Or SAcRAMENTO,

Petitioner

Tue SacraMENTO County Civiz Service Commission, and

THe SacRAMENTO County Boarp Or SuPERVISORS,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Hers JACKSON

District Attomey of Sacramento County

L. AntHony WHITE

Chief Deputy District Attorney

Dan M. KInTER

Supervising Deputy District Attorney

901 G Street

Sacramento, California 95814

Telephone (916) 444-0520

Attorneys for Petitioner

BOWNE-PERNAU WALSH ° 1045 SANSOME S&T. ¢ S.F., CA 94111 ¢ (415) 981-7882

SUBJECT INDEX

Page

RN II iia scisnvneostcasspubatcasceembbideniiaanaamadimmanat 2

PIE. cesecichectcnetentehinsccticcsnsntdpssadimanabicnaanimena 2

Questions presented for reVieW ..............-...sc-ccecceeceeeeeeeeees 2

Constitutional provisions, statutes, and regulations

III «fsa nntegaitinne tenant acai 3

ees ae COO GINS 5... a

PNT <csicrbiccanahteskchscenienesaschienndsanapdeliieaaienoaeanail 3

I icici Sictiintincnnnie chemahiotegaiaadaamabal 5

Rule 7.10—minority preference appointment .............. 7

Font af Ge C0 on nck ee 8

ES tieiim mee’ PIII aniseed cnncasnentecanstecenons 12

Beason for qramtinag Ge Wrat n...ncaccccsscsccceeeestssketensries 12

Federal Civil Rights Acts prohibit the minority quota

hiring program mandated by the commission ............ 14

Fourteenth Amendment of the United States Constitu-

tion prohibits the minority hiring program man-

ae ey Re CI is nssinscserssercrnnstiastieneiaccenticaces 18

COI: si cisascicgnetcinsinnsieessninienasoenncesnsancabbeetiadtiateinaeelaadatia 24

Appendices

II I seine ccsccnsensjuasnebitiieisnnsioncapcigdal adie ae A-1

DAI T wissscsscssiscsnnstaecilatineittnaneies daeiakeneladiapaipaaat A-91

IG, eiiitineicnncti bint ciemmmpimaanaadante A-97

TABLE OF AUTHORITIES CITED

Cases

Page

Albermarle Paper Co. v. Moody (1975) 422 US. 405... 16

City of Los Angeles v. Manhart (1978) 435 U.S. 702 ....16, 17

DeFunis ~. Odegaard (1974) 416 U.S. 312 ....000.00 23

Dunn v. Blumstein (1972) 405 U.S. 330 ....000. 21

Franks v. Bowman Transportation Co. (1976) 424 U.S.

ia cisievecanecseppssnhicnnbweonenpinuee ae 16

Furneo Construction Corporation v. Waters (1978)

SEE 16

Griggs v. Duke Power (1971) 401 U.S. 424 0. 17

Hampton v. Mow Sun Wong (1976) 426 U.S. 88 ............ 23

International Brotherhood of Teamsters v. U.S. (1977)

ES SEES TEI CE 16

Katzenback v. Morgan (1966) 384 U.S. 641 000000... 21

Korematsu v. United States (1944) 323 U.S. 214 .......... 21

Loving v. Virginia (1967) 388 U.S. 1 o...........eeeeeeeeeceeee 21

McDonald v. Santa Fe Transportation Company

SES Te 16, 18

Monell v. Department of Social Service of the City of

New York (2nd Cir. 1976) 532 F.3d 259 ....0000000......... 14

Regents of the University of California v. Bakke

IE I so cncenenteateceoesetsstneseeensscecescseoesocs 19, 20, 22

Shapiro v. Thompson (1969) 394 U.S. 618 ....00.00.000022... 21

United Steelworkers, etc. v. Weber (1979) ........ USS.

sina EES Ae |

Washington v. Davis (1976) 426 U.S. 229 ................ 18, 19, 21

ill

TaBLE or AUTHORITIES CITED

Constitution

' Page

United States Constitution, Fourteenth Amendment

2, 3, 12, 18

Statutes

United States Civil Rights Act of 1866 as Amended

Se SNS RE ial Recccectcciteen econ 2, 3, 12, 14, 15, 16, 17

IE WII ed cahiectscnvsnsioscdkoheieseeveccudsalotndadcagituadsupentodedinelicl 14

LN ERA Ir oe, SenaiQrOMe nA A. 1 SINe pes mr 14

OI INES sic xecicassseclntinsinisecedieekoeveilataioeanacs sonidbelcip soventilacea 15

as MID cicivadiccheskdioanhianesinia be nunca acai Sabalbecap a thaaclabiouion 2

42 U.S.C.:

NRE ME PR NL FA OPA Dea MOOT oe 3

SI oe cossuntaneussectinnbibenoresieeubnid 3, 14

I cd a | scadp baeepmaabiobentiobonaats 3, 14

a idcascncntpelnesesisiudcedennccachasnaiase 3, 15

I i ca eae 3

California Government Code

LAD TS USNs SF a Rae SUF ORT LEON 5)

Other Authorities

Sacramento County Charter

NTI otis odectilechiccsiatessctaclceeeqeonnniohacicidiasinciinbeSasamainanensiinstin 5

DT ar a ilies 5

gE |) RRSREEB SERRE Ole AEC cio On ee a 5

Sacramento Civil Service Commission Rules

UNTUD « sicebencincecsissdashadipuasticaarneiciahbssdton Madaiets seciab ac ghancsseaerliiaaielit 5

INITIO: daicenslas danse sascedellionhadeonaatba on edeniealocincNocuuitiddeldies i)

| RR SOS Ret ee nist ahaa WO ese 5

TTD sidkiicticccrnsaieessiae 2, 3, 4, 7, 8, 12, 13, 15, 17, 18, 19, 21

A Sarisecs nccaechdinibbidescealiesa detiekadcntiagninsbnbaialaun eesti 6

No.

In the Supreme Court

OF THE

United States

Octoser Term, 1979

District ArrorNEeY For Tue County Or SacrkaMENTO,

Petitioner

Tue SacRaMENTO County Civiz Service Commission, and

Tue SacraMENTO County Boarp Or Supervisors,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Petitioner, District Attorney of Sacramento County,

prays that a writ of certiorari issue to review the opinion

and judgment of the Supreme Court of the State of

California.

OPINION BELOW

The opinion of the Supreme Court of the State of Cali-

fornia in this matter entitled Price v. Civil Service Com-

mission is reported at 26 Cal.3d 257, 161 Cal.Rptr. 475,

604 P.2d 1365 and is set forth at page A-1 in Appendix A

to this petition. The opinion of the Court of Appeal for the

State of California, Third District, in this matter is re-

ported at 77 Cal.App.3d 234, 143 Cal.Rptr. 483, and is set

forth at page A-68 of Appendix A. The opinion of the Sac-

ramento Superior Court, which is unreported, is set forth

at page A-86 of Appendix A.

JURISDICTION

The judgment of the Supreme Court of the State of Cali-

fornia was dated and entered January 25, 1980. A Petition

for Rehearing was filed on February 11, 1980 and on Feb-

uary 19, 1980 the time for granting or denying the Petition

for Rehearing was extended to March 25, 1980. On March

20, 1980 the Petition for Rehearing was denied.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. 1257 in that the Supreme Court of the State of

California, in its decision in this matter, ruled that Sacra-

mento County Civil Service Rule 7.10 violated neither the

Fourteenth Amendment of the Constitution of the United

States nor the Federal Civil Rights Act.

QUESTIONS PRESENTED FOR REVIEW

A. Whether the Federal Civil Rights Acts prohibit the

involuntary, public employment, minority quota hiring

program mandated by the Sacramento County Civil

Service Commission.

B. Whether the Equal Protection Clause of the Four-

teenth Amendment of the United States Constitution

prohibits the involuntary, public employment, minor-

ity quota hiring program mandated by the Sacramento

County Civil Service Commission.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

Set forth in Appendix B are the pertinent provisions of

the Fourteenth Amendment to the United States Constitu-

tion; the following provisions of the Federal Civil Rights

Act of 1866 as amended in 1964 and 1972: 42 U.S.C. 1981;

42 U.S.C. 2000e-2(a), (b), and (j); 42 U.S.C. 2000-5(g) ;

and Ruie 7.10 of the Sacramento County Civil Service

Rules.

STATEMENT OF THE CASE

Summary

In late 1972, the Sacramento County Civil Service

Commission (hereinafter Commission), under authority

delegated to them by the Sacramento County Board of

Supervisors, promulgated Rule 7.10 (hereinafter Rule, and

set forth in Appendix A, page A-94) entitled “Minority

Preference Appointment”, establishing within the county

civil service system a minority’ hiring procedure. The Rule

permitted the Commission, after conducting hearings and

issuing findings, to order a county agency to hire minorities

1Rule 7.10 defines “minority personnel” to include Blacks, Indians,

Mexican-Americans, Spanish-Americans, Orientals, other non-

Whites, and women.

on the basis of an alternating ratio with non-minorities. In

September, 1975, after holding hearings concerning the

small number of minority attorneys in the three county law

offices’, the Commission found, among other things, that

there had been unintentionally discriminatory employment

practices* by Sacramento County and Petitioner, and or-

dered (Findings and Order set forth in Appendix C) Peti-

tioner to appoint minorities (other than women‘) to the

Attorney I (entry level) classification on an alternating

ratio of 2:1 (at least one minority for each two non-minor-

ities) until the percentage of minority attorneys in the

Attorney I and II classes reached eight percent. Petitioner

sought, and received, from the trial court, an order pro-

hibiting the implementation of the Rule. That ruling was

affirmed by the California District Court of Appeal and was

reversed by the California Supreme Court in a four to

three decision, and remanded to the Trial Court for a re-

view of the sufficiency of the evidence.

Although the Commission investigated alleged underrepresenta-

tion of minorities in the offices of the Sacramento District Attorney,

Public Defender and County Counsel, they issued a minority

quota order directed only to the District Attorney. They concluded

that the Public Defender had cured any underrepresentation and

that it was impractical to issue any order to the County Counsel

because of low turnover of attorneys in that office.

’Rule 7.10 defines “discriminatory employment practices” as “the

use by the County of selection methods or selection criteria not

related to the job”.

*Women were not a part of the order, directed to Petitioner,

which is the basis for this action.

Background

The Petitioner is an elected official serving an urban

population of 700,000 consisting of approximately 19.5 per-

cent minorities (other than women). He is sworn to uphold

the constitutions of both California and the United States

and is authorized to appoint deputies “for the prompt and

faithful discharge of the duties of his office.” (California

Government Code, § 24101) All of the sixty-five deputies

district attorney he employed at that time (except for his

assistant) were a part of the county civil service system.

Sacramento County’s civil service system is “traditional”

in that it is career oriented, and all appointments to county

employment are to be “based upon relative fitness as ascer-

tained by competitive examinations.” (Sacramento County

Charter 71-F(a)). The Civil Service Commission Rules

state in Rule 5 that “[i]t is the policy of the county to seek

the best qualified persons available . . .” Both the County

Charter and the Civil Service Rules prohibit favoritism or

discrimination’. All applicants for county employment must

‘Sacramento County Charter 61: “No person in the classified

or unclassified service, or seeking admission thereto shall be ap-

pointed, reduced, removed, or in any way favored or discriminated

against because of his race, color, creed, sex, national origin or

political affiliation. The provisions of this section are not intended

to prevent the establishment of special limited programs for the

employment of economically, socially, physically or mentally de-

prived persons.”

Sacramento County Charter 71-F(f): “No person in county

service, or seeking admission thereto, shall be appointed, reduced,

removed, or in any way favored or discriminated against because

of his race, color, sex, national origin or political affiliation. This

provision is not intended to prevent the establishment of special

pass a competitive examination. After the examination, the

names of the applicants who pass are placed on a list with

the highest scores at the top. Persons with the same score

are considered to be in the same “rank” and, when an em-

ployment opening occurs, the appointing authority (county

agency) must appoint from one of the names in the top

three ranks.* The name of any candidate who either is ap-

pointed or who refuses an offer of employment must be

stricken from the list. This permits others below the initial

three ranks to be “reachable”.’ The rationale for these

testing, ranking and appointing procedures is thet they

give the appointing agency some limited discretion in hir-

ing, assures that the most qualified persons will be hired,

and prevents appointments either for political reasons or

for reasons other than merit (such as for race).

The Commission, appointed by the Board of Super-

visors, consists of five members whose only qualifications

are that they be qualified electors within the county and

not be salaried county employees. The Board of Super-

programs for the employment of economically, socially, physically,

or mentally deprived persons.”

Sacramento Civil Service Rule 5.1: “It is the policy to seek the

best qualified persons available for each job in County Service,

and to encourage persons to compete for the best jobs for which

they are qualified without regard to race, color, religion, sex,

national origin or political belief.”

°The requirenient to appoint from the top three ranks is known

as the “rule of ‘hree”. Civil Service Rule 7.4 provides that “it is

intended that . . . the appointing power shall have the choice of

any of the persons whose names appear in any of the three highest

ranks on the eligible list.”

TAs persons within the first three ranks are either hired or refuse

an appointment, their names are stricken, As a complete rank is

eliminated, persons in the next lower rank become “reachable”, i.e.

are now in one of the top three ranks,

visors has delegated to the Commission the duty of over-

seeing the county civil service system.

Rule 7.10—Minority Preference Appointment

Early in 1974, in response to concerns of local minority

groups about the underrepresentation of minorities in

county employment, the Commission adopted Rule 7.10

which provided in part:

“(a) The purpose of this rule is to provide a proce-

dure for the adjustment of disproportionate repre-

sentation of minority personnel, which is a result of

discriminatory employment practices.”

“(b) As used in this rule:

(1) “Minority personnel” includes, but is not

necessarily limited to Blacks, Indians, Mexican-

Americans, Spanish-Americans, Orientals, other

non-Whites and women.

(2) “Discriminatory employment practice” means

the use by the County of selection methods or selec-

tion criteria not related to the job.

(3) “Alternating ratio” means a ratio indicating

a number of minority persons who shall be appointed

to a classification for a given number of non-minor-

ity persons appointed to the classification.”

“(ce) The findings required by this rule shall be made

separately in relation to each classification after a pub-

lic hearing at which interested persons are afforded

an opportunity to be heard and to present evidence.

The Commission may order minority appointment

preference ...if it finds that:

(1) The number of minority personnel in a

classification is disproportionately low in relation to

the population mix of the County of Sacramento. .. .

(2) The disproportionate representation was

caused by discriminatory employment practices; and

(3) It is feasible to adjust the disproportionate

representation. .. .”

“(d) If the Commission makes the findings required

by this rule, it may order that minority personnel shall

be appointed ... with an alternating ratio until a speci-

fied number of minority persons have been appointed

to the classification. The Commission’s order shall

specify :

(1) The minority group or groups included in the

order;

(2) The total number of such appointments, .. .

(3) The alternating ratio to be used, taking into

consideration the population mix of the County, the

number of minority persons who can be reasonably

expected to apply and qualify, ...

(4) Any other requirements which the Com-

mission determines are reasonably necessary... .”

s ® &

“(g) The Director of Personnel Management shall

certify for appointment minority persons from the eli-

gible list ... ahead of non-minority persons only when

necessary to implement the requirements of the

Order.”

Facts of this Case

Between April, 1974, and September, 1975, the Com-

mission held non-adversary hearings concerning the under-

representation of minority attorneys in the District At-

torney’s Office. At that time, one (about 1.5 percent) of the

deputies in Petitioner’s office was a minority. The best

estimates were that approximately 7 percent of the attor-

neys in California, at that time, were minority.

During that time period, the examination* for attorney

positions consisted of an oral interview by a panel of four

persons. The panel was comprised of an attorney from the

District Attorney’s Office, an attorney from the Publie De-

fender’s Office, a representative from the county Office of

Personnel Management, and a member of the local, private

bar. After the interview, each panel member assigned the

applicant a score ranging from one to one hundred

(seventy was passing). Each score was based upon the

panel member’s evaluation of the applicant’s education, ex-

perience, knowledge of the law, demeanor, and possession

of those skills required for a prosecutor. The four scores

which the candidate received were then averaged and

rounded off to the nearest whole number. Those who passed

were then placed on a list of eligibles in the order of their

scores on the examination.

In early 1975, a campaign by Sacramento County, Peti-

tioner and the Sacramento Public Defender was conducted

in an effort to recruit minority attorneys. This campaign

resulted in an attorney eligibility list which contained

12.7 percent minorities. Both the District Attorney and the

Public Defender hired several attorneys from that list. Ulti-

mately, five minority attorneys became “reachable” by the

Petitioner, who offered positions to four of them. However,

all four declined (two accepted positions with the Sacra-

mento Public Defender and two accepted positions in

8Civil Service Rule 5A provides that the Director of Personnel

Management determine which examination shall be given for a

particular job classification. It alsc provides for the composition

of the oral panel and requires that at least one panel member

be from a minority group. In fact, two members of the attorney

classification panel were minorities.

Southern California). The fifth was not offered a position

by Petitioner or any Sacramento County agency.

When the recruitment campaign failed to increase the

number of minority attorneys in Petitioner’s Office, the

Commission, on September 25, 1975, issued Findings and

an Order. The Commission had listened to unsworn testi-

mony from approximately 45 witnesses (none of whom

claimed to be a victim of discrimination by Petitioner), and

received 219 pages of documents and letters. The Findings

and Order are summarized as follows:

Findings:

A. The affirmative action needs of women are un-

clear and no order will be made as to them.

B. Minorities are substantially underrepresented

in the Office of the District Attorney in that only one

attorney (1.5 percent) is a minority and approximately

19.5 percent of the Sacramento County population is

minority.

C. There is no evidence of intentional discrimina-

tion.

D. There is evidence of unintentional discrimina-

tion based upon:

1. Sacramento County’s traditional civil service

system.

2. Oral only examinations which have never

been “validated”.®

3. There has not been a special effort to recruit

minorities.

*In the parlance of equal opportunity legislation, a validated test

is one which demonstratably tends to test ability to perform a job.

4. The failure by the District Attorney to offer

civil service appointments to minority persons in the

legal trainee positions.

EK. It is feasible to recruit and hire minority

attorneys.

Order:

A. Appointments to the class of Attorney I in the

District Attorney’s Office shall be made on a 2:1 ratio

so that at least one minority person is appointed for

every two non-minority persons.

B. The ratio shall be applied only until the percent-

age of minorities in the classes of Attorney I and II

in the District Attorney’s Office is eight percent.

C. A minority group shall not receive preferential

treatment if it is already adequately represented in the

attorney classes.

The Order required Petitioner to hire attorneys solely on

the basis of race and regardless of their relative fitness to

perform the work as compared with non-minorities who

must be passed over. The effect was to require Petitioner

to hire at least one minority (excluding women or members

of a minority group which was already adequately repre-

sented) for each two non-minorities hired. For example,

if there were no minority attorneys within the top three

ranks of the list, Petitioner would have had to make an

appointment from a lower rank, regardless of how far

down the list the minority’s name appeared. Also, if no

minority appeared on the list who was willing to accept

a position as a prosecutor in Petitioner’s office, no attor-

neys could be hired until a new list was created.

State Court Proceedings

In October, 1975, Petitioner sought and received a Writ of

Mandate/Prohibition from the Sacramento Superior Court.

Petitioner contended, among other things, that Rule 7.10,

on its face, violated State and Federal equal protection

guarantees and violated the provisions of the Federal Civil

Rights Act. The Trial Court found that the Rule, on its

face, violated constitutional provisions against discrimina-

tion based upon race or national origin. Respondent (Ap-

pellant below) appealed, and on January 30, 1978, the

California Third District Court of Appeals affirmed the

trial court’s ruling, and found that Rule 7.10 violated the

provisions of the Sacramento County Charter and Title

VII of the Federal Civil Rights Act. Respondents ap-

pealed to the California Supreme Court. Petitioner (Re-

spondent below) contended, among other things, that the

Rule violated the Equal Protection Clause of the Four-

teenth Amendment of the United States Constitution and

Title VII of the Federal Civil Rights Act. On January 25,

1980, the California Supreme Court reversed the Trial

Court and ruled, in a four to three decision, that Rule 7.10

did not violate the Equal Protection Clause of the Four-

teenth Amendment of the United States Constitution or

Title VII of the Federal Civil Rights Act, or any other ap-

plicable law. On March 20, 1980, Petitioner’s Petition for

Rehearing was denied and the Dissenting Opinion modified.

REASON FOR GRANTING THE WRIT

The effect of permitting the California Supreme Court

decision to stand is enormous: /t mandates the govern-

ment, which is supported through taxes by persons of

every race, color, or national origin, to blatantly dis-

criminate, in public employment, against its citizens. Such

a mandate is contrary to basic premises upon which our

society is based: that everyone is entitled to be treated

equally by the government, and that public employees are

to be chosen on the basis of their relative merit and for no

other reason. The idea that applicants for public service

may be excluded from consideration solely because of their

race or national origin, is repugnant to a free society.

In this particular case, the Petitioner, an official elected

by the citizens of his community, sworn to uphold the laws

of the land to the best of his ability, has been ordered to

abandor his obligation to his electorate to appoint the best

qualified prosecutors available, and instead, to select at-

torneys based upon the color of their skin or the heritage

of their parents. Furthermore, this Rule and Order was

made by a Commission whose members have not been elec-

ted by the people, after hearings which provided virtually

no procedural safeguards, and without the identification of

any particular alleged victims of discrimination. Although

the stated purpose for Rule 7.10 is the correction of

underrepresentation of minorities in county employment

because of discriminatory employment practices, it is

obvious from the entire record that the true goal of the

Rule is to create a racially proportionate allocation of pub-

lic jobs at the expense of the quality of government service

and the rights of our people.

Neither the United States Constitution nor Federal law

permits the discrimination which the Commission has

ordered.

“The lesson of the great decisions of the Supreme

Court and the lesson of contemporary history have

been the same for at least a generation: Discrimination

on the basis of race is illegal, immoral, wnconstitu-

tional, imherently wrong, and destructive of demo-

cratic society. Now this is to be wnlearned and we

are told that this is not a matter of fundamental prin-

cuple but only a matter of whose ox is gored.””””

FEDERAL CIVIL RIGHTS ACTS PROHIBIT THE MI-

NORITY QUOTA HIRING PROGRAM MANDATED

BY THE COMMISSION

The 1972 Amendment of Section 701, Title VII of the

Federal Civil Rights Act of 1964, extended to state and

local governments the prohibition of segregating or classi-

fying employees or applicants in a manner which tends to

deprive an individual of an employment opportunity be-

cause of his race, color, religion, sex or national origin

under section 703(a) of Title VII (42 U.S.C. § 2000e-2(a)

and (b)). Monell v. Department of Social Service of the

City of New York (2nd Cir. 1976) 532 F.3d 259, 261. Rule

7.10 and the orders it permits, violate the explicit pro-

hibitions of the Federal Civil Rights Acts by injecting

racial, ethnic and gender qualifications into a hiring system.

Professor Alexander Bickel, Morality of Consent, page 133

(1975).

Section 703(j) of Title VII (42 U.S.C. § 2000e-2(j)) de-

clares that nothing in Title VII “shall be interpreted to re-

quire any employer ... to grant preferential treatment to

any individual or to any group because of... race, color,

religion, sex or national origin .. . on account of any im-

balance which may exist with respect to the... percentage

of persons of any race, color, religion, sex or national

origin employed by an employer ... in comparision with

the ... percentage of persons of such race, color, religion,

sex or national origin in any community ... or in the avail-

able work force...”

The congressional history of the Civil Rights Act of

1964 reveals that the ardent proponents of the bill assured

their colleagues that racial quotas were not contemplated

by the legislation. As Senator Humphrey explained, “A

new subsection 703(j) is added to deal with the problem of

racial balance among employees. The proponents of this

bill have carefully stated on numerous occasions that title

VII does not require an employer to achieve any sort of

racial balance in his work force by giving preferential

treatment to any individual or group. Since doubts have

persisted, subsection (j) is added to state this point ex-

pressly.” (Remarks of Senator Humphrey, 110 Cong. Ree.

12723, June 4, 1974; EEOC Legislative History.) These

sections clearly prohibit the numerical hiring scheme em-

bodied in Rule 7.10 and the order directed to Petitioner.

The scheme makes minority status a qualification for each

third opening in the Attorney I class in Petitioner’s office.

Non-minorities are deprived of eligibility for that third po-

sition regardless of their qualifications relative to minori-

ties on the eligibility list. This is entirely inconsistent with

the holding of McDonald v. Santa Fe Transportation Com-

pany (1976) 427 U.S. 273 wherein this Court unanimously

held that Title VII is not limited to discrimination against

members of any particular race, and that white employees

are entitled to relief when they are victims of racial dis-

crimination.

Hiring quotas are incompatible with recent U.S. Supreme

Court cases on Title VII. Albermarle Paper Co. v. Moody

(1975) 422 U.S. 405, 421, held that the scope of relief under

Title VII, “is intended to make the victims of past dis-

crimination whole.” In Franks v. Bowman Transportation

Co. (1976) 424 U.S. 747, and International Brotherhood

of Teamsters v. U.S. (1977) 481 U.S. 324, this Court held

that the appropriate remedy for past discrimination is to

restore the victims of such discrimination to their right-

ful places. This Court also pointed out that non-victims of

discrimination would not be entitled to preferential relief.

Teamsters, swpra, at 772. Further evidence that Title VII

is directed towards the individual and not a group is found

in Furnco Construction Corporation v. Waters (1978) 438

U.S. 567, wherein this Court stated:

It is clear beyond a cavil that the obligation imposed

by Title VII is to provide for equal opportunity for

each applicant without regard to whether members of

the applicant’s race are already proportionately repre-

sented in the work force.

And in City of Los Angeles v. Manhart (1978) 435 U.S.

702, the Court again made the point that Title VII pertains

to the individual rather than to a group saying:

The statute (Title VII) makes it unlawful ‘to dis-

criminate against any individual with respect to his

compensation, terms, conditions or privileges of em-

ployment because of such individual’s race, color, reli-

gion, sex or national origin’ (citations omitted). The

statute’s focus on the individual is unambiguous. It

precludes treatment of individuals as simply com-

ponents of a racial, religious, sexual or national class.

In Griggs v. Duke Power (1971) 401 U.S. 424, 431, the

Court stated the same proposition saying:

In short (Title VII) does not command that any person

be hired simply because he was formerly the subject

of discrimination, or because he is a member of a

minority group. Discriminatory preference for any

group, minority or majority, is precisely and only

what Congress has proscribed.

A quota such as the quota imposed by Rule 7.10 is di-

rected to a group rather than to an individual victim of

discrimination, as required by Title VII and the cases

which interpret it. Quotas have the practical effect of

creating victims of discrimination rather than being a

remedy for discrimination victims. It is inequitable that in-

nocent parties should give up what they have not gained as

a result of discrimination, so that others can gain what they

have not lost as a result of discrimination.

The California Supreme Court majority opinion in this

matter seems to lean heavily on the United States Supreme

Court decision in United Steelworkers, etc. v. Weber (1979)

seaeolon US. ......... 99 S.Ct. 2721. Although five justices did

uphold a racial classification program at a Kaiser Alu-

minum Plant, the majority opinion stressed that it was

factually inapposite to a compulsory program involuntarily

imposed on and by a public agency. Justice Brennan, writ-

ing the lead opinion in which Justices Stewart, White, Mar-

shall and Blackmum joined, declared repeatedly that the

Kaiser plan “does not involve state action.” The opinion is

replete with references to the fact that the parties (in

Weber) voluntarily agreed to undertake that program. It

is significant that Justice Brennan in his Weber opinion

did not quarrel with McDonald. In fact, he found McDonald

not to be controlling because the Kaiser plan in Weber was

“voluntarily adopted by private parties.”

The language of the Civil Rights Act and its amend-

ments, its legislative history, and the cases interpreting the

Act lead to the inescapable conclusion that Rule 7.10 is in

direct conflict with federal law and cannot remain in force.

FOURTEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION PROHIBITS THE MI.

NORITY HIRING PROGRAM MANDATED BY THE

COMMISSION

The essence of the Fourteenth Amendment’s Equal Pro-

tection proscription that no state “... shall deny any per-

son within its jurisdiction the equal protection of the law”

was stated in Washington v. Davis, (1976) 426 U.S. 229,

239:

The central purpose of the Equal Protection Clause

. ..is prevention of official conduct discriminating on

the basis of race.

Because of the invidious nature of racial classifications,

they:

... are to be subjected to the strictest scrutiny and are

justifiable only by the weightiest of considerations.

Washington v. Davis, supra at 242

The “strict scrutiny” test is applicable to racial classifi-

cations (those which treat similarly situated persons diff-

erently because of race) because such classifications are

repugnant to the concept of equality embodied within the

Fourteenth Amendment, and are deemed “suspect.” The

fact that non-minorities, rather than minorities, suffer the

discrimination by such classifications does not remove them

from the Equal Protection’s purview.

As this Court stated in Regents of the University of

California v. Bakke (1978) 438 U.S. 265, 289-290:

The guarantee of equal protection cannot mean one

thing when applied to one individual and something

else when applied to a person of another color. If both

are not accorded the same protection, then it is not

equal,

Rule 7.10, and the Commission’s Order, created classifi-

cations, in fact quotas, based upon race and national origin.

For example, given three openings, if Petitioner appointed

two non-minority" deputies based upon their merit and

“The “availability” of minority attorneys is a significant aspect

of the Commission’s Order. In fact, Petitioner offered positions to

four out of five “reachable” minority attorneys in early 1975, but

all four declined to accept an appointment. The fifth was not of-

fered a position because of his poor performance as a Student In-

tern. From these facts, the Commission concluded that the Peti-

tioner discriminated. In reality, the percentege of minority attorneys

in Petitioner’s Office did not increase because particular minority

attorneys, for whatever reasons (pay, weather, other opportunities,

etc.), chose not to accept a position as a prosecutor in Sacramento.

availability,’? non-minorities would be excluded from. con-

sideration for the third opening solely because of their

race or national origin. Conversely, only minority attorneys

(except those belonging to a minority group already ade-

quately represented) would be eligible for appointment

regardless of their examination score and rank on the eligi-

bility list. Other than passing the examination, their sole

qualification would be their race or national origin.

This racial classification is directly opposite to the ma-

jority holding in Regents of the University of California v.

Bakke, supra. In Bakke, Justice Powell in his lead opinion

for himself and for Chief Justice Burger, Justices Stewart,

Rehnquist, and Stevens wrote: “In summary, it is evident

that the Davis special admissions program involves the

use of an explicit racial classification never before coun-

tenanced by this Court. It tells applicants who are not

Negro, Asian, or Chicano that they are totally excluded

from a specific percentage of the seats in an entering class

... The fatal flaw im [the Davis] preferential program is

its disregard of individual rights as guaranteed by the

Fourteenth Amendment.” (438 U.S. at 319-320; emphasis

added)

There is no evidence that the Petitioner actually discriminated

against any attorney or that any minority attorney decided not to

work in Petitioner’s Office because of unfair or unequal treatment.

2The Commission’s Order 3. (Appendix, page A-104) provides that

any particular minority group which is already adequately repre-

sented will not receive minority preference. This would lead to

the unusual situation in which a minority, under the definition of

the Rule, would be discriminated against under the operation of

the Rule, because his minority group had reached its proportionate

percentage.

When a person has been totally deprived of benefit or

right because of governmental racial classification, the

“strict scrutiny” test has always been applied. Katzenback

v. Morgan, (1966) 384 U.S. 641. This Court has consistently

struck down classifications based upon race as furthering

no compelling state interest. Shapiro v. Thompson, (1969)

394 U.S. 618. Such racial classifications have not been

found to meet the strict scrutiny test except in time of war

when national security was involved. Korematsu v. United

States (1944) 323 U.S. 214. The burden is on the govern-

ment (Commission) to show that the classification meets

the strict scrutiny standards. Dunn v. Blumstein (1972)

405 U.S. 330, 342-343. Therefore, the Commission must

demonstrate that it is furthering a compelling state inter-

est and that Rule 7.10 is a necessary means to accomplish

that end. Loving v. Virginia (1967) 388 U.S. 1, 11; Wash-

mgton v. Davis, supra.

There is no compelling state interest either articulated

by the Commission or existent in the facts of this case

which would justify the racial quotas ordered by the Com-

mission. The record in this matter totally lacks evidence

which demonstrates that there has been an actionable con-

stitution or federal law violation in employment: there was

no showing of identifiable victims; there was no evidence

of intentional discrimination; the definition of “discrimina-

tory employment practices” (the cornerstone of Rule 7.10)

does not require that the relevant conduct have an adverse

impact on minorities; and the facts’* which were the basis

~ 18The facts which supported the finding of discrimination were:

1. “traditional” civil service system; 2. “unvalidated” oral examina-

tions; 3. lack of recruitment; and 4. lack of appointment of minor-

ity attorneys (one) from the Student Intern Program,

22°

for the Findings of unintentional discrimination are aston-

ishingly weak. Finally, the record shows no long-standing,

established discrimination because, in fact, no actual dis-

crimination was proven. Certainly the record is bare of

any demonstration of a state interest which is even argu-

ably compelling.

Additionally, the record fails to show that a racial quota

is a necessary means to accomplish the elimination of the

effects of the alleged discrimination. If the real purpose

for the Rule was to correct the effects of past discrimina-

tion, the definition of “‘discriminatory smployment prac-

tice” would have required the practices to have an adverse

impact on minorities. If the Rule and Order were really

concerned with discrimination (rather than proportion-

ality) they would have contained some provisions to cor-

rect the evils which the Commission believed caused dis-

crimination. However, no efforts were or have been made

by the Commission to modify those facts (set forth in

Footnote 13) which were found to cause the alleged

discrimination.

Assuming, for the sake of argument, that actual discrim-

ination did exist, a racial quota is not a rational or neces-

sary method of curing that discrimination. Bakke, supra.

As Justice Mosk stated in his Dissenting Opinion below in

this matter, “... for every person quota-ed in, another is

quota-ed out. There is no way in which a numerical quota

can be benign. If it favors one, it necessarily rejects

another.’”*

‘Justice Mosk, in his Dissent, discusses (Appendix A-56 through

A-58) some of the inherent evils of quotas. Among them are: the

impossible problem of fairly defining what a minority is; and what

Aside from the discrimination which the Commission has

ordered, the procedures set torth in the Ru'e and which

the Commission followed do not meet basic Due Process

requirements of the United States Constitution. The right

to engage in gainful public employment is a protected per-

sonal liberty. Hampton v. Mow Sun Wong (1976) 426 U.S.

88. The Rule does provide for public hearings, but contains

no procedural safeguards to assure that they would be

held in a meaningful manner (and indeed they were not).

There was no requirement for sworn testimony, for the

examination of witnesses, for the application of basic rules

of evidence, for the recordation of the hearings, or for

review or appeal. It is astonishing that a non-elected group

of five persons with no special qualifications, based solely

upon unsworn statements and rumor, without the appear-

ance or identification of particular victims, and without

recordation, can then order a racial quota in public employ-

ment. Certainly the basic requirements of constitutional

due process have not been met.

Petitioner’s position is well summarized in a quote from

Justice Douglas’ dissent in DeFunis v. Odegaard (1974)

416 U.S. 312, 342:

The State, however, may not proceed by racial classi-

fication to force strict population equivalencies for

every group in every occupation, overriding individual

preferences. The Equal Protection Clause commands

the elimination of racial barriers, not their creation

in order to satisfy our theory as to how society ought

to be organized.

percentage of blood is required to qualify a person as a member of

today’s “chosen people.”

CONCLUSION

' For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Hers Jackson

District Attorney of Sacramento County

L. ANTHONY WHITE

Chief Deputy District Attorney

Dan M. Kner

Supervising Deputy District Attorney

Attorneys for Petitioner

(Appendices follow)

Appendices

Appendix A

In the Supreme Court

of the

State of California

S.F. 23836

Super. Ct. No. 257623

John M. Price, as District Attorney, etc., :

Plaintiff and Respondent,

vs.

Civil Service Commission of Sacramento

County et al.,

Defendants and Appellants. ;

[Filed Jan. 25, 1980]

OPINION

In this case we must determine whether a governmental

entity may voluntarily adopt a race-conscious, affirmative

action hiring program of limited duration to alleviate an

underrepresentation of minority employees which the entity

finds is attributable to its own past discriminatory employ-

ment practices.

The trial court in this action enjoined the County of Sac-

ramento from implementing such a remedial hiring pro-

gram, concluding that any measure that attempts to

increase the proportion of minority workers through the

SEE DISSENTING OPINION

A-2

employment of hiring ratios or goals violates the consti-

tutional rights of non-minorities, even when the program

is adopted as a remedy for past discrimination. The Dis-

trict Attorney of Sacramento County, who initiated the

present litigation, maintains that such a race-conscious hir-

ing plan is not only unconstitutional, as the trial court held,

but in addition violates various provisions of Title VII

of the federal Civil Rights Act, the California Fair Em-

ployment Practice Act (FEPA) and the Sacramento

County Charter.

As we shall explain, in light of the United States Su-

preme Court’s recent decisions in United Steelworkers,

ete. v. Weber (1979 ...... US. ...... [99 S.Ct. 2721] and Uni-

versity of California Regents v. Bakke (1978) 488 U.S.

265, we have concluded that the trial court judgment must

be reversed. The Weber and Bakke decisions teach that

neither the pertinent antidiscrimination enactments nor

the constitutional equal protection guarantee may prop-

erly be interpreted to prohibit a governmental employer

from voluntarily implementing a reasonable race-conscious

hiring program to remedy the effects of the employer’s own

past discriminatory employment practices. Such remedial

affirmative action measures promote, rather than thwart,

the attainment of the ultimate constitutional and legisla-

tive objective: a society in which equal employment oppor-

tunity is a reality rather than an elusive dream.

1. The facts and proceedings below.

In 1974, the Sacramento County Civil Service Commis-

sion (Commission), concerned with the relative paucity of

A-3

minority individuals in the county’s employ, conducted a

series of hearings into the county’s past hiring practices

in an attempt to ascertain the reasons for the under-repre-

sentation and to identify potential courses of action to

ameliorate the situation.

Testimony and other evidence presented at these hear-

ings revealed that Sacramento County’s traditional civil

service selection procedures, like similar civil service sys-

tems throughout the country, embodied a variety of sig-

nificant, although apparently inadvertent, discriminatory

features. Employment experts explained initially that such

civil service systems have traditionally relied heavily.

either on ostensibly objective written examinations or on

avowedly subjective oral examinations (i.e., interviews),

both of which have operated to screen out a dispropor-

tionate number of minority applicants. Although such

examinations were generally employed by governmental

employers in the expectation that such procedures would

ensure a “merit” selection process, the experts testified

that upon analysis the procedures actually utilized could

not be so justified. Written civil service examinations very

often were severely outdated and bore no relationship to

the employment position for which application was being

made, and oral examinations were in general neither struc-

tured to assure uniformity and fairness in application nor

scrutinized to determine that the results of the interview

procedure actually correlated with an applicant’s ability to

perform the job under consideration.

In addition the experts reported that although civil

service positions were theoretically open to all applicants,

many public employers in the past undertook few, if any,

A-4

steps to disseminate information of openings to the public

at large. As a consequence, applicants were frequently con-

fined to friends or relatives of present employees who had

learned of the job opportunities by word of mouth. Groups

who were not already represented in the workforce, includ-

ing most minority groups, were thus effectively, albeit un-

intentionally, excluded from the hiring process.

In response to the information devolped at this series of

hearings, the Commission adopted a general regulation,

rule 7.10, entitled “minority preference appointment”;' the

*Rule 7.10 provides in full:

“MINORITY PREFERENCE APPOINTMENT

“(a) The purpose of this rule is to provide a procedure for

adjustment of disproportionate representation of minority

personnel in the County work force which is a result of dis-

criminatory employment practices.

“(b) As used in this rule:

“(1) “Minority personnel’ includes, but is not necessarily

limited to, Blacks, Indians, Mexican-Americans, Spanish-

Americans, Orientals, other non-Whites and women.

“(2) ‘Discriminatory employment practice’ means the use

by the County of selection methods or selection criteria not

related to the job.

“(3) ‘Alternating ratio’ means a ratio indicating a number

of minority persons who shall be appointed to a classification

for a given number of non-minority persons appointed to the

classification.

“(c) The findings required by this rule shall be made

separately in relation to each classification after a public hear-

ing at which interested persons are afforded an opportunity

to be heard and to present evidence. The Commission may

order minority appointment preference as provided in this rule

if it finds that:

“(1) The number of minority personnel in a classification

is disproportionately low in relation to the population mix of

A-5

validity of the regulation lies at the heart of the instant

controversy. The initial subdivision of rule 7.10 declares:

“The purpose of this rule is to provide a procedure for

adjustment of disproportionate representation of minority

personnel in the County work force which is a result of dis-

criminatory employment practices.”

the County of Sacramento, including the populations of all

cities:

“(2) The disproportionate representation was caused by

discriminatory employment practices; and

“(3) It is feasible to adjust the disproportionate representa-

tion by requiring that minority persons on an eligible list be

appointed on a preferential basis as provided in this rule.

“(d) If the Commission makes the findings required by this

rule, it may order that minority personnel shall be appointed

to the classification involved in accordance with an alternating

ratio until a specified number of minority persons have been

appointed to the classification. The Commission’s order shall

specify:

“(1) The minority group or groups included in the order:

“(2) The total number of such appointments, which number

shall not be greater than necessary to attain a fair approxi-

mation of minority representation in the classification consistent

with the population mix in the County of Sacramento, in-

cluding the populations of all cities.

“(3) The alternating ratio to be used, taking into considera-

tion the population mix of the County, the number of minority

persons who can be reasonably expected to apply and qualify,

and any other relevant circumstances; and

“(4) Any other requirements which the Commission de-

termines are reasonably necessary to assure effective com-

pliance with the order in accordance with the purposes of

this rule.

“(e) If the classification is used by more than one depart-

ment, the order shall also specify the number of minority

appointments to be made by each department using the

classification. The number for each department may be zero

or greater and shall be determined by the Commission for

A-6

Under the terms of the rule, if the Commission finds

“after a public hearing at which interested persons are

afforded an opportunity to be heard and to present evi-

dence” that the underrepresentation of minority personnel

in a particular classification was caused by “discriminatory

each department on the basis of any relevant considerations

including, but not limited to, the number of positions in the

classification in the department and the extent to which a

representative minority mix already exists in said positions.

“(f) An order may be rescinded or revised from time to

time by the Commission as it determines to be necessary or

appropriate. Such action may be taken by the Commission

on its own motion or at the request of any interested person.

In determining whether to rescind or revise an order, the

Commission may consider any relevant information including

but not limited to the needs of the service, changed circum-

stances, problems encountered in implementing the order, and

information which was not previously considered by the Com-

mission.

“(g) The Director of Personnel Management shall certify

for appointment minority persons from the eligible list for a

classification for which the Commission has ordered use of an

alternating ratio ahead of non-minority persons only when

necessary to implement the requirements of the order. If a

department required to appoint in accordance with an alter-

nating ratio has not yet made the maximum number of non-

minority appointments permitted by the applicable alternating

ratio, persons shall be certified for appointment to a vacancy

in the classification in the order of their standing on the list.

If the department has made the maximum number of non-

minority appointments permitted by the ratio, names of min-

ority persons only shall be certified in the order of their stand-

ing on the list and the appointment shall be made from among

the minority persons whose scores at the time of certification

represent the three highest ranks and who are available for

appointment.”

A-7

employment practices,” and that it is feasible to ameliorate

such underrepresentation “by requiring that minority per-

sons on an eligible list be appointed on a preferential basis

as provided in this rule,” the Commission may order that

minority personnel shall be appointed to the classification

involved in accordance with an alternating ratio until a

specified number of minority persons have been hired. The

rule additionally provides that any such remedial order

remains continually subject to modification or rescission,

and that “[i]n determining whether to rescind or revise an

order, the Commission may consider any relevant infor-

mation including but not limited to the needs of the service,

changed circumstances, problems encountered in implement-

ing the order, and information which was not previously

considered by the Commission.”

As early as June 1974, the date of the original adoption

of rule 7.10, the Commission became aware of, and con-

On its face, the definition of “discriminatory employment prac-

tice” in rule 7.10, subdivision (b)(2) (see fn. 1, ante) appears

to differ from the traditional definition of that term in federal

employment discrimination litigation, since as defined in the rule

the term could be read to include non-job-related practices which

do not adversely affect minorities. Taken as a whole, however,

rule 7.10’s provisions make it clear that only “discriminatory em-

ployment practices” which actually cause a disproportionate under-

representation of minority employees will warrant the issuance of

a race-conscious remedial order under the rule. Moreover, the

Commission’s ruling in this case plainly indicates that the Commis-

sion has interpreted the “discriminatory employment practice”

terminology of the rule as synonymous to the categories of employ-

ment practices that have been found to violate Titile VII of the

federal Civil Rights Act. (See fn. 17, post.)

Accordingly, we shall use the term “discriminatory employment

practice” in this opinion as the equivalent of such terminology

in the pertinent federal employment discrimination cases.

A-8

cerned about, the almost complete absence of minority at-

torneys in the county district attorney’s office. The

Commission did not, however, immediately institute pro-

ceedings under the new rule but instead postponed any

direct action, relying on the district attorney’s assurances

that he would undertake additional efforts to recruit and

hire minority attorneys. In July and December 1974, the

district attorney repeated his assurances to the Commis-

sion, but when additional minority attorneys had not been

hired by the summer of 1975, the Commission commenced

a hearing under rule 7.10 to determine whether a remedial

order should be issued.

At the conclusion of the hearing, the Commission found

that the specific prerequisites to a remedial order under

rule 7.10 were established, and that a remedial order should

be issued.* The Commission noted initially that only 1 of

the 65 attorney positions in the district attorney’s office was

filled by a minority person and thus that the number of

minority personnel was “disproportionately low” in rela-

tion to the 19.5 percent minority population in Sacramento

County generally.

®The remedial order adopted by the Commission applies only to

minorities other than women. The Commission’s findings explain

the basis of this omission: “In accordance with Commission Resolu-

tion No. 74-1 the Commission has heretofore implemented Rule

7.10 only for minorities other than women. Necessary studies and

hearings regarding representation of women in county employment

and affirmative action needs for employment of women are not yet

complete. Accordingly, the order of the Commission herein shall be

limited to minorities other than women.” No party to the present

action has raised any objection to this aspect of the order.

A-9

The Commission additionally found that the under-

representation of minorities resulted from a number of

unintentional discriminatory employment practices, includ-

ing inter alia the use of unvalidated oral examinations and

the absence of adequate recruitment efforts. Finally, the

Commission found that it would be feasible to adjust the

disproportionate representation of minority attorneys in

the district attorney’s office by implementing the remedial

preference authorized by rule 7.10.

In formulating the specifics of the remedial order, the

Commission took into account the percentage of available

qualified minority attorneys on the county’s eligibility list.

The Commission’s order specified that appointments in the

class of Attorney I in the district attorney’s office “shall be

made on the basis of an alternating ratio of 2:1 so that at

least one minority person is appointed for every two non-

minority persons” and that “[s]aid ratio shall be applied

only until the percentage of minorities in the classes of

Attorney I and Attorney II in the District Attorney’s office

is 8%.”

The Commission’s findings indicated that in light of the

fact that the current Sacramento County Attorney I eligi-

bility list contained 12.7 percent minority representation,

and that minority attorneys comprised 17 percent of the

entry level attorneys in state legal offices, the 8 percent

figure was quite realistic and feasible. Indeed, in terms of

the numbers of lawyers in the Attorney I and Attorney IT

classifications at the time of the Commission decision, the

remedial order would apparently have become inoperative

A-10

as soon as the district attorney’s office hired two or three

minority attorneys.*

Shortly after the Commission issued its order, the district

attorney instituted the instant mandamus proceeding

against the Commission and the county board of super-

visors, challenging the validity of the Commission’s order

and, inferentially, the validity of rule 7.10 itself insofar

as the rule authorized the implementation of such race-

conscious remedial orders. After rejecting defendants’ pre-

liminary contention that the district attorney lacked

authority to maintain the suit, the trial court heard argu-

‘There were 34 attorneys in the Attorney I and Attorney II

classifications in the district attorney’s office at the time the order

was issued. The 8 percent goal would be met by the employment

of 3 minority attorneys (8 percent of 34 = 2.72). Even if the single

minority attorney already employed by the office was promoted to

Attorney III, the order would have required only that three of

the next nine attorneys hired by the district attorney be qualified

minorities,

5After the trial court overruled their demurrer on this issue,

defendants sought a writ of mandate and/or prohibition from the

Court of Appeal. The Court of Appeai issued an alternative writ,

but ultimately decided the issue in favor of the district attorney,

denying the peremptory writ in a written opinion fully discussing

the merits of defendants’ contention. (Civil Service Commission v.

Superior Court (Feb. 11, 1976) 3 Civ. 15730 [unpub. opn.].) Our

court thereafter denied a petition for hearing in the matter.

On the present appeal, defendants seeks to relitigate the issue

of the district attorney’s authority or “standing” to prosecute the

instant action. We agree with the district attorney’s contention that

under the instant circumstances the “law of the case” doctrine

defeats defendants’ claim on this point. As noted, the Court of

Appeal’s earlier ruling on the standing issue was a decision on the

merits of the claim through a written opinion; such a decision is

generally binding under the law of the case doctrine even though

the opinion was rendered in an extraordinary writ proceeding. (See,

A-11

ment on the merits of the case, and thereafter concluded

that rule 7.10 was unconstitutional on its face. In view of

that conclusion, the trial court found it unnecessary to ad-

dress the district attorney’s additional contention that the

findings underlying the Commission’s order were not sup-

ported by the evidence. The court thereafter entered judg-

ment in favor of the district attorney, permanently

restraining the defendants from implementing or enforcing

rule 7.10. Defendants have appealed from that judgment.

2. The Commission was authorized to adopt a general

remedial affirmative action program to overcome the

effects of its past discriminatory employment practices,

and the race-conscious hiring ratios authorized under

7.10 do not violate the Sacramento County Charter,

the FEPA, Title VII of the federal Civil Rights Act or

constitutional equal protection principles.

Although the trial court rested its decision solely on the

asserted unconstitutionality of rule 7.10, on this appeal the

district attorney defends the trial court’s invalidation of

rule 7.10 on a variety of grounds. He contends (1) that the

Civil Service Commission lacked authority to implement

any affirmative action hiring program, (2) that the “racial

ratio” remedial orders authorized by rule 7.10 are pro-

hibited by various provisions of the county charter, the

FEPA and Title VII of the federal Civil Rights Act and

e.g., People v. Medina (1972) 6 Cal.3d 484, 492.) Furthermore,

as we noted in Davies v. Krasna (1975) 14 Cal.3d 502, 507, foot-

note 4: “The [law of the case] rule applies even though the sub-

sequent appeal comes before this court whereas the prior [proceed-

ing was] before [the Court] of Appeal.”

A-12

(3) that the county’s implementation of such “racial ratio’

measures violates the state and federal equal protection

clauses. In light of the traditional judicial inclination to

avoid a constitutional ruling if a case can be resolved on

nonconstitutional grounds (see, e.g., Ashwander v. T.V.A.

(1936) 297 U.S. 288, 346-348 (Brandeis, J., concurring)),

we turn initially to the district attorney’s charter and

statutory arguments.

(a) The Commission was authorized to adopt an affir-

mative action hiring program to overcome the

effects of past discrimination.

The district attorney argues first that under the pro-

visions of the Sacramento County Charter, the Commission

enjoys no authority to implement any form of minority

affirmative action program which provides for departure

from strict civil service eligibility rankings in the hiring

of county employees. Although the district attorney recog-

nizes that the charter specifically designates the Com-

mission as the appropriate governmental body to “establish

rules regarding the selection of employees for, and the

classification of, civil service positions” (Sac. County Char-

ter, art. XVI, § 71-B, subd. (a)), he contends that the Com-

mission’s authority in this regard is strictly limited by the

specific charter provisions which establish the general pro-

cedures for the filling of civil service positions through

competitive examinations. (See, id., § 71-F, subds. (a)-(e).)*

*Section 71-F, subdivisions (a) through (c) provide:

“(a) The county civil service is career service and all ap-

pointments to positions in the civil service shall be based on

A-13

Although section 71-F, subdivisions (a) through (c) of

the charter do prescribe a general procedure for hiring

employees on the basis of rankings on competitive exam-

inations, the district attorney’s argument ignores addi-

tional charter provisions which specifically proscribe dis-

criminatory employment practices and which authorize the

Commission to enforce the antidiscrimination provisions by

appropriate regulation or order. (See id., §§ 61; 71-F, subd.

(f); 71-B, subds. (d), (g).)’ Inasmuch as the Commission

relative fitness as ascertained by competitive examinations. At

least ten days’ notice shall be given of each examination.

“(b) Eligible lists shall be established upon which shall be

entered the names of successful candidates in the order of

their standing in examination.

“(c) Eligible lists shall be established upon which shall be

entered the names of successful candidates in the order of

their ranking in the examination. For the filling of one vacancy,

the appointment shall be made from among the eligibles whose

scores, at the time of certification, represent the three highest

ranks on the list. For purposes of ranking, scores of eligibles

on an eligible list shall be rounded to the next highest whole

percent and a rank shall consist of one or more eligibles with

the same whole percentage score. If a special skill is needed

for some, but not all positions, in a class, which special skill

has been tested for on a pass or fail basis as a part of the

examination on which the list is based and the vacancy is one

of the positions in the class requiring the special skill, the

appointment may be made from the eligibles possessing the

special skill who are available for appointment and whose

scores at the time of certification represent the three highest

ranks on the list of those who possess the special skill.”

"Section 61 provides:

“No person in the classified or unclassified service, or seek-

ing admission thereto shall be appointed, reduced, removed,

or in any way favored or discriminated against because of his

race, color, creed, sex, national origin or political affiliation.

The provisions of this section are not intended to prevent the

establishment of special limited programs for the employment

A-14

after a duly authorized investigation ( id., § 71-B, subd.

(e)) determined that it had grounds to suspect that the

county’s past competitive examinations had had a racially

discriminatory effect and that such examinations were not

job-related, we have no doubt that the Commission’s en-

forcement authority empowered it to take action to remedy

the situation. Under these circumstances, the promulgation

of an affirmative action plan, directed specifically at amelio-

rating minority underrepresentation which is found to have

resulted from the county’s own discriminatory employment

practices, falls within the authority of the Commission. (Cf.

Associated Gen. Contractors of Mass., Ine. v. Altschuler

(1st Cir. 1973) 490 F.2d 9, 20-21, cert. den. (1974) 416 U.S.

of economically, socially, physically or mentally deprived

persons.”

Section 71-F, subdivision (f) provides:

“(f£) No person in county service, or seeking admission

thereto, shall be appointed, reduced, removed, or in any way

favored or discriminated against because of his race, color,

creed, sex, national origin or political affiliation. This provi-

sion is not intended to prevent the establishment of special

programs for the employment of economically, socially, physi-

cally or mentally deprived persons.”

Section 71-B, subdivisions (d) and (g) provide:

“(d) The commission shall make final decisions on appeals

involving alleged improper action under, or the denial of any

rights provided by, this article or the rules adopted there-

under. The commission’s authority in this regard pertains only

to examinations and other matters under the jurisdiction of

the commission pursuant to this article.”

“(g) The commission may adopt rules to carry out the

commission’s powers and duties and governing the commis-

sion’s proceedings under this article.”

A-15

957; Lindsay v. City of Seattle (1976) 86 Wn.2d 698 [548

P.2d 320, 327] cert. den., 429 U.S. 886.)*®

We find no merit in the district attorney’s additional

argument that the Commission was “preempted” from

adopting its remedial affirmative action by the provisions

of the California FEPA. (Lab. Code, § 1410 et seq.) The

FEPA does create a statewide remedy for victims of

discriminatory employment practices, but nothing in the act

evidences any intent to preclude employers—publie or

private—froin voluntarily implementing affirmative action

plans to overcome the continuing effects of past dis-

crimination. On the contrary, specific provisions of the

FEPA declare that state policy strongly favors the adop-

tion of such voluntary affirmative action plans. (See Lab.

®An additional charter provision authorizes the Commission to

formulate affirmative action plans to aid disadvantaged minorities

even in the absence of specific findings of past discrimination.

Section 71-F, subdivision (i), a section which follows charter pro-

visions sanctioning the granting of preferences to military veterans

and to permanent county employees (§71-F, subds. (g) & (h)),

authorizes the Commission to “provide for the establishment of

programs, including trainee programs, designed to attract and

utilize persons with minimal qualifications, but with potential for

development, in order to provide career development opportunities

among members of disadvantaged groups, handicapped persons

and returning veterans. Such programs may provide for permanent

appointment upon the satisfactory completion of the training period

without further examination.” (Emphasis added. )

It does not appear, however, that rule 7.10 was promulgated

pursuant to this authority, for the rule limits its remedial orders

to instances in which underrepresentation was caused by past dis-

crimination and does not completely bypass the competitive ex-

amination procedure but simply authorizes the hiring department

to reach otherwise nonappointable minorities on an existing eli-

gibility list. (See rule 7.10, subd. (g) (quoted at fn. 1, ante).)

A-16

Code, § 1431; see also Gov. Code, § 19790 et seq.) More-

over, a recent amendment to Labor Code section 14382,

subdivision (c) explicitly provides that nothing in the

FEPA is intended to foreclose local governmental entities

from going beyond the FEPA and enacting additional

measures “banning discrimination in employment by any

city, city and county, county, or other political subdivision

of the state.” (Stats. 1978, ch. 1254, §19, p. .)

Thus, we conclude that the Commission was empowered

to adopt a remedial affirmative action program to ameli-

orate the effects of the county’s past discriminatory

employment practices.°

*Because the county charter invests the Commission with au-

thority over the procedures for selection of civil service employees,

it is clear that, contrary to the dissent’s assertions (see post, p.

),*: the affirmative action plan at issue was voluntarily adopted

by the County of Sacramento, since the plan was implemented by

the Commission without any compulsion by federal or state au-

thorities. The fact that a head of one of the constituent depart-

ments of the county-employer, i.e., the District Attorney, disagreed

with the adoption of such a plan does not, of course, render the

plan “involuntary” any more than the disagreement of one of a

private employer’s foremen or department heads would render a

plan adopted by the responsible official of such an employer

involuntary.

*Multilith opinion, pages 1-2.

A-17

(b) The remedial race-conscious orders authorized by

rule 7.10 do not violate the antidiscrimination pro-

visions of Title VII of the federal Civil Rights

Act or the comparable antidiscrimination stric-

tures of the Sacramento County Charter and the

FEPA.

This issue brings us to the district attorney’s principal

contention. The district attorney argues that even if the

Commission is empowered to adopt some form of affirma-

tive action plan, the “racial hiring ratio” program autho-

rized by rule 7.10 is not a permissible remedial procedure.

The district attorney asserts that any remedial measure

that reserves a designated percentage of employment

opportunities for qualified minority persons impermissibly

discriminates against nonminority applicants for county

employment on the basis of their race. As such, he main-

tains that it violates the antidiscrimination provisions of

the Sacramento County Charter, of the FEPA, and of

Title VII of the federal Civil Rights Act. Although the

wording of these disparate provisions varies in some

respects, each of the sections provides in essence that no

person shall be discriminated against in employment

opportunities on the basis of his race, color, creed, sex or

national origin.”® The district attorney argues that, liter-

10The relevant provisions of the Sacramento County Charter,

sections 61 and 71-F, subdivision (f), are set forth in full at foot-

note 7, ante.

The relevant provision of the FEPA provides as follows: Section

1420: “It shall be an unlawful employment practice, unless based

upon a bona fide occupational qualification, or, except where based

A-18

ally applied, the terms of these antidiscrimination provi-

sions bar all racial hiring ratios—regardless of their

remedial nature—since such racial ratio measures operate

to exclude nonminorities, on the basis of their race, from

the percentage of positions reserved for qualified minority

applicants.

upon applicable security regulations established by the United

States or the State of California:

“(a) For an employer, because of the race, religious creed,

color, national origin, ancestry, or sex of any person, to refuse

to hire or employ him or to refuse to select him for a training

program leading to employment, or to bar or to discharge such

person from employment or from a training program leading to

employment, or to discriminate against such person in com-

pensation or in terms, conditions or privileges of employment.”

The relevant provisions of Title VII of the federal Civil Rights

Act of 1964 provide as follows: Section 703(a) (42 U.S.C. § 2000e-

2(a)): “(a) It shall be an unlawful employment practice for an

employer—

“(1) to fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin; or

“(2) to limit, segregate, or classify his employees or appli-

cants for employment in any way which would deprive or

tend to deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because

of such individual’s race, color, religion, sex, or national

origin.”

Section 703(d) (42 U.S.C. § 2000e-2(d) ):

“It shall be an unlawful employment practice for any em-

ployer, labor organization, or joint labor-management commit-

tee controlling apprenticeship or other training or retraining,

including on-the-job training programs to discriminate against

any individual because of his race, color, religion, sex, or

national origin in admission to, or employment in, any program

established to provide apprenticeship or other training.”

A-19

The United States Supreme Court recently addressed

this issue in United Steelworkers, ete. v. Weber, supra,

sensei US. ........ [99 S. Ct. 2721]. In Weber, an employer,

Kaiser Aluminum & Chemical Corporation, seeking “to

eliminate conspicuous racial imbalances in [its] ... almost

exclusively white craft forces” (id., at p. 2725), imple-

mented an affirmative action plan which established an in-

plant craft training program for its employees. The plan

provided that selection of applicants for the training

program would be made on the basis of seniority, but

additionally provided that at least 50 percent of the new

trainees were to be black until the percentage of black

skilled craft workers in the plant approximated the per-

centage of blacks in the local labor force. A nonminority

employee who had been rejected for the training program

even though he had greater seniority than some of the

black employees who had been admitted to the program

challenged the validity of the plan under Title VII, con-

tending, as the district attorney does in this case, that the

“racial ratio” aspect of the plan—reserving 50 percent of

the training positions for minorities on a temporary basis

—discriminated against him on the basis of his race in

violation of the statute.

In Weber, Justice Brennan, writing for the majority

of the court in a five-to-two decision,” rejected the employ-

ee’s contentions and upheld the validity of the employer’s

race-conscious affirmative action program. Although the

‘Justices White, Stewart, Marshall and Blackmun joined Justice

Brennan’s opinion in Weber. Chief Justice Burger and Justice

Rehnquist dissented. Justices Powell and Stevens did not participate

in the decision.

A-20

court acknowledged that a literal construction of the anti-

discrimination sections of Title VII might preclude all

such race-conscious remedial programs, the majority con-

cluded that it would be inappropriate to adopt such a

construction, explaining “[i]t is a ‘familiar rule that a

thing may be within the letter of the statute and yet not

within the statute, because not within its spirit nor within

the intention of its makers.’ [Citations.]” (Jd., at p. 2727.)

Upon examination of the legislative history of the Civil

Rights Act and a review of the historical context from

which the act arose, the court concluded “that an inter-

pretation of the sections that forbade all race-conscious

affirmative action would ‘bring about an end completely

at variance with the purpose of the statute’ and must be

rejected. [Citations.]” (Jd.)

The Weber court noted, in this regard, that one of the

principal goals of the entire Civil Rights Act of 1964 was

“the integration of blacks into the mainstream of American

society” (id.) and that Title VII’s prohibition of racial

discrimination in employment was directed towards “open-

[ing] employment opportunities for Negroes in occupa-

tions which have been traditionally closed to them.” (/d.,

at p. 2728.) Given these circumstances, the court observed

that “[i]t would be ironic indeed if a law triggered by a

Nation’s concern over centuries of racial injustice and

intended to improve the lot of those who had ‘been excluded

from the American dream for so long’ [citation] constitu-

ted the first legislative prohibition of all voluntary, pri-

vate, race-conscious efforts to abolish traditional patterns

of racial segregation and hierarchy.” (/d.) Accordingly,

the Weber court held that Title VII’s prohibition against

A-21

racial discrimination does not mandate a “colorblind”

approach to all employment remedies and does not compel

an employer to eschew race-conscious affirmative action

programs under all circumstances.”

424 majority of the Supreme Court reached a similar conclusion

in construing the provisions of Title VI of the federal Civil Rights

Act in Bakke, determining that the antidiscrimination provision

of Title VI does not prescribe a totally colorblind regime, but

rather permits persons covered by the section to adopt race-

conscious programs which, if adopted by a governmental entity,

would comport with equal protection principles. (See 438 U.S.

265, 284-287 (opn. of Powell, J.); id., at pp. 328-355 (opn. of

Brennan, White, Marshall and Blackmun, JJ.)

In Bakke, Justice Stewart joined Justice Stevens’ opinion which

apparently would have construed Title VI to prohibit any “racial

ratio” affirmative action program, at least in the absence of a

showing of past discrimination. In the more recent Weber case,

however, Justice Stewart joined Justice Brennan’s opinion which

eschewed such an interpretation of an analogous antidiscrimination

provision, and thus it appears that at least six justices of the Su-

preme Court now agree that such antidiscrimination provisions

should not normally be construed to bar all race-conscious remedies.

In contending that the Commission’s race-conscious hiring prac-

tice violates Title VII, the district attorney relies on a passage from

Justice Stevens’ opinion in Los Angeles Dept. of Water & Power

v. Manhart (1978) 435 U.S. 702, 709, which states, inter alia, that

“Congress has decided that classifications based on sex, like those

based on national origin or race, are unlawful.” The Manhart

decision clearly does not control here, however, for that decision

did not pass upon a remedial affirmative action program at all, but

instead involved a traditional sex discrimin. om challenge to an

employment practice which operated to disadvantage women.

Similarly, in McDonald v. Santa Fe Trail Transp. Co. (1976) 427

U.S. 273, relied on by the dissent, Justice Marshall carefully ex-

plained that the employer “disclaims that the actions challenged

here were any part of an affirmative action program . . . and we

emphasize that we do not consider here the permissibility of such

a program, whether judicially required or otherwise prompted.”

(Id. at p. 281, fn. 8.) The United States Supreme Court's subse-

A-22

The Weber decision, while refuting the district attorney’s

broad contention that Title VII bans all race-conscious

employment procedures, stops short of holding that Title

VII’s antidiscrimination provisions place no restrictions

whatsoever on an employer’s use of race-conscious measures

in affirmative action plans. It suggests that an extreme or

inflexible race-conscious program might not be permissible.

Although the Weber court declined to “define in detail the

line of demarcation between permissible and impermissible

affirmative action plans” (id., at p. 2730), the court did

squarely hold that the affirmative action plan at issue in

quent decisions in Bakke and Weber, interpreting the antidis-

crimination language of Title VI and Title VII in an affirmative

action context, are unquestionably more directly in point than

Manhart or McDonald.

Furthermore, the suggestion that Title VII imposes different

standards on public employers than on private employers clearly

lacks merit. Contrary to the dissent’s assertion, nothing in the

McDonald decision—which involved a private employer—supports

such an argument, and in Dothard v, Rawlinson (1977) 433 U.S.

321, 331, fn. 14, the Supreme Court explicitly recognized that the

legislative history of the 1972 amendments extending Title VII to

public employers evidenced an intent that ‘the same Title VII

principles be applied tc governmental and pr'vate employers alike.”

Moreover, every circuit court that has passed on the issue has con-

cluded that “whether the empleyer be private or public, the same

prerequisites to Title VII liability apply.” (See, e.g., Scott v. City

of Anniston (5th Cir. 1979) 597 F.2d 897, 899-900; Blake v. City of

Los Angeles (9th Cir. 1979) 595 F.2d 1367, 1372-1374; United

States v. City of Chicago (7th Cir. 1978) 573 F.2d 416, 420-424;

Firefighters Institute, etc. v. City of St. Louis (8th Cir. 1977) 549

F.2d 506, 510, cert. den. (1977) 434 U.S. 819. See also Detroit

Police Officers Assn. v. Young (6th Cir. 1979) .. F.2d_...)°®

See genera!ly Powers, Implications of Weber—A Net Beneath”

(1979) 5 Employee Relations L.J. 325, 333-334.

*°48 U.S.L. Week 2277.

A-23

Weber “falls on the permissible side of the line” (id.) and

its explanation of this conclusion provides at least some

rough guidance as to the nature of the factors to be con-

sidered in determining the validity of a race-conscious

affirmative action plan under Title VII.

In sustaining the Weber plan, the court stated: “The

purposes of the plan mirror those of the statute. Both were

designed to break down old patterns of racial segregation

and hierarchy. Both were structured to ‘open employment

opportunities for Negroes in occupations which have been

traditionally closed to them.’ [Citation.] [Par.] At the same

time the plan does not unnecessarily trammel the interests

of the white employees. The plan does not require the dis-

charge of white workers and their replacement with new

black hires. Cf. McDonald v. Santa Fe Trail Trans. Co.,

[ (1976) 427 U.S. 273]. Nor does the plan create an absolute

bar to the advancement of white employees; half of those

trained in the program will be white. Moreover, the plan is

a temporary measure; it is not intended to maintain racial

balance, but simply to eliminate a manifest racial imbalance.

Preferential selection of craft trainees at the Gramercy

plant will end as soon as the percentage of black skilled

craft workers in the Gramercy plant approximates the per-

centage of blacks in the local labor force. [Citation.]” (Fn.

omitted.) (Jd., at p. 2730.) Under these circumstances the

court held that the plan did not violate Title VII.

This passage from Weber suggests that the propriety of

a race-conscious plan under Title VII will depend first,

upon whether the overall purposes of the plan are compati-

ble with the broad objectives of Title VII and, second,

A-24

whether or not the plan operates in an unduly harsh man-

ner on non-minorities, ie., whether the specific remedial

plan “unnecessarily trammel[s] the interests of the white

employees.” (Jd.)

When measured against the application of these criteria

in Weber, the race-conscious program prescribed by rule

7.10 does not violate Title VII. First, the purpose under-

lying rule 7.10 clearly accords with the objectives of Title

VII. The rule, like the Weber plan, seeks to eliminate estab-

lished patterns of racial segregation and hierarchy and to

open employment opportunities from which minorities have

been disproportionately excluded. Indeed, rule 7.10 perhaps

more clearly resembles the purposes of Title VII than the

Weber plan, since the declared purpose of rule 7.10 “is to

provide a procedure for adjustment of disproportionate

representation of minority personnel ... which is a result

of discriminatory employment practices” (emphasis added)

whereas the Weber plan prescribed remedial measures in

the absence of proof of any specific employment discrimi-

nation.

Second, the race-conscious remedy authorized by rule 7.10

operates no more harshly on the rights of non-minorities

than the plan approved in Weber. Like the Weber program,

rule 7.10 does not contemplate the discharge of nonminority

workers and their replacement with minority employees.

Similarly, the “alternating ratio” procedure prescribed by

rule 7.10 creates no absolute bar to the hiring of non-

minority personnel; under the order at issue here, for

example, up to two-thirds of newly hired attorneys may

be nonminorities. Finally, rule 7.10, like the Weber plan,

A-25

makes plain that its remedial orders are temporary in

nature, intended simply to eliminate the results of past

discrimination and not indefinitely to maintain a prescribed

racial balance. Thus, the order under attack here specifies

that the minority ratio shall be applied “only until the

percentage of minorities in the classes of Attorney I and

Attorney IT in the District Attorney’s office is 8%.”

Accordingly, under Weber, the race-conscious remedial

plan established in rule 7.10 clearly does not violate the

antidiscrimination provisions of Title VII.

Although the United States Supreme Court’s interpreta-

tion of the antidiscrimination provisions of Title VII does

not, of course, necessarily determine the appropriate inter-

pretation of the antidiscrimination provisions of the Sacra-

mento County Charter or the FEPA, we believe that those

provisions should similarly not be interpreted to bar all

such race-conscious affirmative action plans. First, the

relevant provisions of both the county charter and the

FEPA arose out of the same historical context as the

federal Civil Rights Act and were intended to achieve the

same general objectives as the antidiscrimination prohibi-

tions contained in the federal law. Second, additional fea-

tures in both the county charter provisions and the FEPA

demonstrate that their general ban on employment dis-

crimination did not propose to inhibit the promulgation

of effective affirmative action programs. Thus, both of the

relevant charter provisions—after enumerating the broad

prohibition on employment discrimination—go on to state

that “[t]he provisions of the section are not intended to

prevent the establishment of special limited programs for

the employment of economically, secially, physically or

A-26

mentally deprived persons.” (See Sac. County Charter, art.

XIV, §61; art. XVI, §71-F, subd. (f) (quoted at fn. 7,

ante).) Similarly, a recent legislative amendment of the

FEPA specifically cautions that the statutory provision

“shall not be interpreted in such a manner as to adversely

effect otherwise lawful state or federal programs which

benefit the physically handicapped, the aged, low-income

individuals, minorities, or women.” (Emphasis added.)

(Stats. 1978, ch. 1254, § 20, p. _.)

Moreover, in recent years the California Legislature

has enacted a number of additional statutory provisions,

relating to the state’s own employment practices, that

demonstrate a legislative determination that race-conscious

affirmative action employment programs which employ

specific goals and timetables fully accord with general

antidiscrimination principles. Government Code, section

19702, like the earlier-quoted provisions of the Sacramento

County Charter and the FEPC, provides broadly that with

respect to state civil service employment “[a] person shall

not be discriminated against ... because of sex, race, reli-

gious creed, color, national origin [or] ancestry... .” In

1977, the Legislature added a new chapter to the Govern-

ment Code, sections 19790 through 19797, entitled “State

Civil Service Affirmative Action Program.” (Stats. 1977,

ch. 943, § 2, p. 2876.) The initial provision of the chapter,

section 19790, provides in part: “Each agency and depart-

ment is responsible for establishing an affirmative action

program. ... Hach agency and department shall establish

goals and timetables designed to overcome any identified

underutilization of minorities and women in their respective

organizations.” (Italics added.)

A-27

The new chapter goes on to define the terms “goals,”

“timetables,” and “underutilization.” It makes clear that

the legislation contemplates that state agencies will develop

specific hiring and promotional goals to alleviate situations

in which an occupation or departmental level has fewer

minorities or women “than would reasonably be expected

by their availability.”"* These recently enacted provisions

clearly refute the contention of the district attorney and

several amici that affirmative action plans which employ

concrete goals or ratios conflict with the legislatively ex-

pressed public policy of the State of California.

Accordingly, we conclude that the race-conscious remedy

provided by rule 7.10 does not violate the prohibition on

racial discrimination contained in the Sacramento County

Charter, the FEPAor Title VII.

rule 7.10 do not violate either the federal or state

equal protection clauses.

The district attorney argues that even if the recent

Weber decision establishes that Title VII does not prohibit

this kind of race-conscious affirmative action plan, and

18Section 19791 provides in full: “As used in this chapter:

(a) ‘Goal’ means a projected level of achievement resulting from

an analysis by the employer of its deficiencies in utilizing minorities

and women and what reasonable remedy is available to correct

such underutilization. Goals shall be specific by the smallest rea-

sonable hiring unit, and shall be established separately for

minorities and women, (b) “Timetable’ means an estimate of the

time required to meet specific goals. (c) “‘Underutilization’ means

having fewer persons of a particular group in an occupation or at

a level in a department than would reasonably be expected by

their availability.”

A-28

even if the provisions of the county charter and the FEPA

similarly do not bar such a measure, rule 7.10 is nonethe-

less invalid under the equal protection clauses of the state

and federal Constitutions. As the district attorney points

out, the United States Supreme Court had no occasion to

address the equal protection question in Weber because

the affirmative action plan under attack in that case was

voluntarily adopted by a private employer and the limita-

tions which the Fourteenth Amendment place on state

action were thus not at issue. (See 99 S.Ct. at p. 2726.)

Although Weber is not directly instructive on the con-

stitutional issue, in University of California Regents v

Bakke, supra, 438 U.S. 265, decided in the term immedi-

ately preceding the Weber decision, five justices of the

Supreme Court did confront the constitutional questions

raised by a governmental entity’s adoption of a race-con-

scious affirmative action plan. As we shall explain, an

analysis of the various opinions in Bakke demonstrates

that the remedial plan at issue in the present case is not

unconstitutional.

14Jn suggesting that the court has disregarded stare decisis by

failing to follow this court’s initial decision in Bakke (see post,

p. _),® the dissent ignores the fact that this court’s decision in

Bakke was superseded by the United States Supreme Court de-

cision in that case. Inasmuch as our initial Bakke decision relied

solely on federal constitutional grounds, the subsequent federal

high court decision addressing the issue of federal law is the

pertinent governing precedent.

Moreover, the dissent’s invocation of this court’s decision in

Bakke is particularly inappropriate, since that decision expressly

acknowledged the numerous federal cases upholding the validity

of governmentally imposed race-conscious remedial measures in

*Multilith opinion, page 8.

A-29

The Bakke case arose out of a challenge to a “special

admissions” program established by the UC Davis Medical

School which reserved 16 of the 100 places in an entering

medical school class for qualified disadvantaged minority

students. A nonminority applicant who had been rejected

by the medical school attacked the race-conscious special

admission program as violative of both the general anti-

discrimination provisions of Title VI of the federal Civil

Rights Act and the Fourteenth Amendment of the United

States Constitution.

In the United States Supreme Court, four justices—

Justice Stevens, Chief Justice Burger, Justice Stewart and

Justice Rehnquist—found it unnecessary to reach the con-

stitutional issue because they concluded that, without re-

gard to constitutional demands, Title VI should be inter-

preted to bar the medical school from adopting the race-

conscious affirmative action program at issue in that case.

The remaining five justices—Justices Powell, Brennan,

White, Marshall and Blackmun—however, rejected the

notion that, in the context of affirmative action plans, Title

VI erected barriers to race-conscious programs that were

more restrictive than those imposed by the equal protec-

tion clause. These five justices concluded instead that

the employment discrimination field, and distinguished the affirma-

tive action plan in Bakke from the measures approved in the

federal cases on the grounds that the record in Bakke contained

no evidence that the special admissions program was implemented

to overcome past discriminatory practices of the UC Davis Medical

School. (See Bakke v. Regents of University of California (1976)

18 Cal.3d 34, 57-60.) The affirmative action plan at issue here,

tying its race-conscious remedy to the amelioration of specific

instances of past discrimination, is directly analogous to the federal

employment decisions seemingly approved by this court’s Bakke

decision. (See id. at p. 57.)

A-30

“Title VI prohibits only those uses of racial criteria that

would violate the Fourteenth Amendment if employed by

a state or its agencies... .” (438 U.S. at p. 328 (opn. of

Brennan, White, Marshall and Blackmun; id., at p. 287

(opn. of Powell, J.).) In light of this conclusion, of course,

these justices found it necessary to address and resolve

the equal protection issue.

The justices who spoke to the equal protection issue in

Bakke expressed their views through two separate opin-

ions. Four justices—Justice Brennan, White, Marshall and

Blackmun—joined in an opinion authored by Justice Bren-

nan. Justice Powell wrote a separate opinion signed by

no other justice.

Although, as discussed below, Justice Powell’s consti-

tutional views differed from his four colleagues’ views

in a number of significant respects, all five justices agreed

that the Fourteenth Amendment does not invariably pre-

clude a governmental entity from utilizing racial classifica-

tions in all circumstances. (/d., at pp. 305-306 (opn. of

Powell, J.); id., at pp. 355-356 (opn. of Brennan, White,

Marshall and Blackmun, JJ.).) Indeed a host of prior

Supreme Court cases had firmly established not only that

the Constitution does not absolutely forbid the use of

remedial racial classifications (see, e.g., McDaniel v. Bar-

resi (1971) 402 U.S. 39) but also that, in some circum-

stances, the Constitution actually compels the use of such

classifications if such measures are needed to overcome

the effects of prior discrimination. (See, e.g., Board of

Education v. Swann (1971) 402 U.S. 438, 46.) Thus, Bakke

initially makes clear that, like Title VII, the Fourteenth

Amendment does not absolutely bar a public employer from

A-31

implementing a race-conscious affirmative action program

in all circumstances.

Although the five justices agreed that a governmental

entity’s use of race-conscious measures could be justified

in some situations, Justice Powell departed from the four

other justices on the question of the nature of the state

interest that would support the adoption of such race-

conscious remedial measures. In Bakke, the record con-

tained no evidence that the underrepresentation of minor-

ity medical students which the special admission program

was intended to alleviate had resulted from the medical

school’s use of discriminatory admission criteria, and the

medical school defended its special admission program in

part on the grounds that the measure was aimed at ameli-

orating the effects of general “societal discrimination”

against minorities. Justices Brennan, White, Marshall and

Blackmun concluded that the medical school’s objective of

remedying the effects of general societal discrimination

was sufficiently important to justify the adoption of a

reasonably designed race-conscious affirmative action pro-

gram. (/d., at pp. 362-369.) Justice Powell disagreed on

this point, concluding that a desire to remedy the effects

of societal discrimination was an insufficiently focused

interest to sustain such a program. (/d., at pp. 307-310.)*°

Justice Powell also concluded, however, that the medical

school’s interest in obtaining a diverse student body was a suffi-

ciently compelling interest to justify a race-conscious admissions

program (438 U.S. at pp. 311-315) and he thus joined with Justices

Brennan, White, Marshall and Blackmun in overturning the portion

of the trial court judgment which totally barred the medical school

from considering race in the admissions process. (Id., at p. 320.)

At the same time, because Justice Powell found that the medical

school had not demonstrated that its numerical racial ratio program

A-32

In rejecting the amelioration of societal discrimination

as a justification for the use of racial classifications, how-

ever, Justice Powell specifically contrasted such a general-

ized, assertedly “amorphous,” objective with the state’s

interest “in ameliorating, or eliminating where feasible,

the disabling effects of identified discrimination.” (Em-

phasis added.) (/d., at p. 307.) Justice Powell stated in

this regard: “We have never approved a classification that

aids persons perceived as members of relatively victimized

groups at the expense of other innocent individuals in the

absence of judicial, legislative or administrative findings

of constitutional or statutory violation. [Citation.] After

such findings have been made, the governmental interest

in preferring members of the injured groups at the

expense of others is substantial, since the legal rights of

the victims must be vindicated. In such a case, the extent

of the injury and the consequent remedy will have been

judicially, legislatively or administratively defined. Also,

the remedial actions usually remain subject to continuing

oversight to assure that it will work the least harm feasible

to other innocent persons competing for the benefit.”

(Emphasis added.) (/d., at pp. 307-308.)

As this and other passages of Justice Powell’s opinion

make clear,’® although Justice Powell believes that the

actually furthered the school’s interest in obtaining a diverse stu-

dent body, he joined with Justices Stevens, Stewart, Rehnquist and

Chief Justice Burger in invalidating the specific special admissions

program at issue in that case. (Id., at pp. 315-320. )

See, e.g., id., at pages 301-302 and footnote 41 (discussing

Title VII racial remedy cases and stating “But we have never

approved preferential classifications in the absence of proved con-

stitutional or statutory violations”); id., at pages 308-309, footnote

44 (“Title VII principles support the proposition that findings of

identified discrimination must precede the fashioning of remedial

measures embodying racial classifications.” ).

A-33

Fourteenth Amendment does not permit a governmental

entity to invoke race-conscious remedies which burden non-

minorities simply out of a desire to rectify “societal dis-

crimination,” he is of the view that a governmental entity

is constitutionally authorized to fashion such race-con-

scious remedies to ameliorate the effects of judicially,

legislatively or administratively identified instances of

racial discrimination.”

It is apparent, of course, that the Bakke decision does

not answer all questions as to the compatibility of affirma-

tive action plans and the equal protection clause. As indi-

cated above, only five justices addressed the constitutional

issue in Bakke; the remaining four justices did not express

any views on the constitutional question. Prior opinions of

the four remaining justices do suggest that a number of

those justices concur with Justices Brennan, White, Mar-

shall and Blackmun in the view that specific findings of

past discrimination are not a constitutional prerequisite to

Contrary to the district attorney’s contention, Justice Powell’s

opinion does not suggest that specific racial “ratios,” “goals,” or

“quotas” are impermissible remedies to ameliorate identified viola-

tions of statutory or constitutional prohibitions on employment

discrimination. Rather, Justice Powell’s opinion states in this re-

gard: “The Courts of Appeals have fashioned various types of

racial preferences as remedies for constitutional or statutory viola-

tions resulting in identified, race-based injuries to individuals held

entitled to the preference. [Citations.] Such preferences also have

been upheld where a legislative or administrative body charged

with the responsibility made determinations of past discrimination

by the industries affected, and fashioned remedies deemed appro-

priate to rectify the discrimination. [Citations.] But we have never

approved preferential classifications in the absence of proved con-

stitutional or statutory violations.” (Id., at pp. 301-302. See also

cases cited at fn. 19, post)

A-34

a public employer’s adoption of a race-conscious remedial

program ;** these justices would apparently conclude that,

from a constitutional perspective, a public employer, like

the private employer in Weber, may voluntarily adopt such

an affirmative action program to alleviate a serious under-

representation of minorities in its workforce. We recognize,

of course, that it is somewhat hazardous to speculate on

the court’s ultimate resolution of such issues.

Although uncertainties remain in some areas, the opin-

ions in Bakke do attest that the race-conscious remedy

authorized by rule 7.10 does not violate the Fourteenth

Amendment. The rule before us authorizes race-conscious

remedies only under circumstances in which Justice Powell,

and, a fortiorari, Justices Brennan, White, Marshall and

Blackmun (see 328 U.S. at p. 366, fn. 41), have clearly in-

dicated that remedial racial classifications are justified. As

we have seen, rule 7.10 provides for the imposition of a

racial remedy only after an authorized administrative body,

the Civil Service Commission, specifically finds that a dis-

proportionately low percentage of minority employees in

a particular department “was caused by discriminatory

employment practices”; the race-conscious “alternating

ratio” orders sanctioned by the rule are specifically in-

tended to ameliorate the effects of such identified discrimi-

18See, for example, United Jewish Organizations v. Carey (1977)

430 U.S. 144, 162 (opn. of White, J., joined, inter alia, by Stevens,

J.); id., at'p. 165 (opn. of White, J., joined, inter alia, by Stevens

and Rehnquist, JJ.), id. at p. 179-180 (opn. of Stewart, J.).

A-35

nation.’® Moreover, as suggested in Justice Powell’s opinion,

rule 7.10 specifically provides that all orders issued under

the rule “remain subject to continuing oversight” (see rule

7.10, subd. (f)) so as to enable the Commission to guarantee

that the order, in actual operation, will not impose undue

burdens on the needs of the service or on the interests of

all interested parties.

Consequently, we conclude that rule 7.10 does not violate

federal equal protection guarantees in authorizing the im-

"The district attorney, focusing on a portion of rule 7.10 that

requires the Commission to determine whether the number of

minority personnel in a given job classification “is disproportion-

ately low in relation to the population mix of the County of Sacra-

mento, including the population of all cities” (rule 7.10, subd. (c)

(1)), contends that the rule effectively authorizes the use of race-

conscious remedies to overcome such “disproportionate representa-

tion” without any finding of past discrimination.

The district attorney's reading of the rule, however, ignores the

immediately following subdivision, which requires the Commission

to find not only the existence of “disproportionate representation”

but that “[t]he disproportionate representation was caused by

discriminatory employment practices.” (Emphasis added.) (Rule

7.10, subd. (c)(2).) Moreover, the Commission has specifically

indicated, in the decision under review here, that “[i]n implement-

ing rule 7.10, it is the intent and purpose of the Commission to

adjust for the adverse effect on minorities of past discriminatory

employment practices on the basis of substantially the same con-

siderations and decisional law as would be applicable in court in a

civil rights action seeking injunctive relief in cases in which there

is no evidence of intentional discrimination.”

Of course, in a given case, an interested party remains free to

challenge the Commission’s issuance of a remedial order on the

grounds that the order is not justified under rule 7.10 because the

evidence before the Commission does not justify a finding that the

underrepresentation of minorities in a particular classification was

in fact caused by discriminatory employment practices. We address

such a contention by the district attorney below.

A-36

position of remedial race-conscious hiring ratios to over-

come the effects of past discriminatory employment prac-

tices. We note that each of the federal courts of appeals

which has faced this question has reached the same con-

clusion, sanctioning the application of minority hiring

ratios similar to that authorized by rule 7.10 to remedy

the effects of administratively or judicially determined

discrimination.” Although many of these federal decisions

preceded the Bakke opinion, all of the circuit courts which

have reviewed the question since Bakke have reiterated the

propriety of race-conscious hiring ratios in this context,”

*°See, for example, Associated Gen. Contractors of Mass., Inc. v.

Altshuler (1st Cir. 1973) 490 F.2d 9, 16-19 (upholding requirement

of 20 percent minority employment by government contractor);

Bridgeport Guard, Inc. v. Members of Bridgeport C.S. Com’n (2d

Cir. 1973) 482 F.2d 1333, 1339-1341 (upholding hiring orders re-

quiring 50 percent minority hires until minorities comprise 15 per-

cent of police workforce); Erie Human Relations Com’n v. Tullio

(3d Cir. 1974) 493 F.2d 371, 374-375 (upholding 1 to 1 hiring

ratio until blacks comprise 5.5 percent of police workforce ); Carter

v. Gallagher (8th Cir. 1971) 452 F.2d 315, 327-332 (en banc) cert.

den. (1972) 406 U.S. 950 (upholding 1 to 2 hiring ratio until 20

minority firefighters have been hired). See generally Schlei v.

Grossman, Employment Discrimination Law (1976) pp. 1199-

1221 and cases cited at p. 1200, fn. 20.

*1See Firefighters Institute v. City of St. Louis, Mo. (8th Cir. 1978)

588 F.2d 235, 239-242, cert. den. sub. nom. Banta v. Firefighters

Institute (1979) ... U.S. ... [99 S.Ct. 3096]; Morrow v. Dillard

(5th Cir. 1978) 580 F.2d 1284, 1292-1294; Fullilove v. Kreps (2d

Cir. 1978) 584 F.2d 600, 606-608, cert. granted May 21, 1979, ...

U.S. ... [99 S.Ct. 2403] (Docket No. 78-1007). See also United

States v. City of Buffalo (W.D. N.Y. 1978) 457 F.Supp. 612, 640;

Local Union No. 35 etc. v. City of Hartford (D, Conn. 1978) 462

F.Supp. 1271, 1277-1286. (See generally Schlei & Grossman, Em-

ployment Discrimination Law (1979 Supp.) p. 332; Note, The

Supreme Court—1977 Term (1978) 92 Harv.L.Rev. 57, 148.)

A-37

and, during the same week in June 1979 in which it handed

down the Weber decision, the Supreme Court denied cer-

tiorari in one of the post-Bakke decisions which approved

the application of specific remedial hiring preferences to a

governmental employer. (See Banta v. Firefighters Insti-

tute (June 25, 1979) ...... US. ...... [99 S.Ct. 3096] denying

cert. to Firefighters Institute v. City of St. Louis, Mo. (8th

Cir. 1978) 588 F.2d 235. See also County of Los Angeles

v. Davis (1979) ...... US. ...... [99 S.Ct. 1879], analyzed in

Powers, Implications of Weber—“A Net Beneath” (1979) 5

Employee Relations L.J. 325, 334.)

Moreover, in the wake of Weber, a number of federal

and state decisions have very recently expressly confirmed

the validity of voluntary governmental affirmative action

employment programs employing concrete race-conscious

hiring goals or ratios comparable to the plan at issue in

the instant case. (See, e.g., Detroit Police Officers’ Assoc. v.

Young (6th Cir. 1979) ...... F.2d ...... ;* Maehren v. City of

Seattle (1979) ...... Wn.2d ...... [599 P.2d 1255]. See gen-

erally Powers, Implications of Weber—‘A Net Beneath”

(1979) 5 Employee Relations L.J. 325, 333-335.)

Thus, although the United States Supreme Court’s re-

cent decision in Weber involved a private employer, the

principle that the eradication of past discrimination against

minorities may be corrected by affirmative actions of gov-

ernment entities under the Fourteenth Amendment has

been upheld by a majority of the Supreme Court in Bakke

and by the rulings of all of the federal courts of appeals

that have addressed the issue. The principle, moreover, is

*48 U.S.L. Week 2277.

A-38

sustained by the elemental concept that the continuing

effects of a past wrong should if possible be remedied by

present action.

The district attorney additionally contends that even if

the race-conscious remedial measures authorized by rule

7.10 are compatible with the federal equal protection guar-

antee, our court should find such measures barred under

state equal protection principles. Although the state equal

protection guarantee embodied in article I, section 7, sub-

division (a) of the California Constitution does provide

safeguards separate and distinct from those afforded by

the Fourteenth Amendment (see Cal. Const., art. I, § 24;

see, e.g., Gay Law Students Assn. v. Pacific Telephone &

Telegraph Co. (1979) 24 Cal.3d 458, 469), the district attor-

ney points to no authority which suggests that the Cali-

fornia equal protection clause should be interpreted to

place greater restrictions on bona fide affirmative action

programs than are imposed by the Fourteenth Amendment.

To the contrary, our past decisions construing article I,

section 7, subdivision (a) reflect this court’s recognition

of the importance of interpreting the provision in light

of the realities of the continuing problems faced by minori-

ties today. (See Crawford v. Board of Education (1976)

17 Cal.3d 280, 301-302.) Viewed from this perspective, we

conclude that the state equal protection clause erects no

barrier to a municipality’s adoption of the kind of affirma-

tive action plan authorized by rule 7.10.

In sum, the race-conscious affirmative action remedy au-

thorized by rule 7.10 violates neither charter, nor statutory,

nor constitutional command. Accordingly, we conclude that

the trial court erred in striking down rule 7.10 on its face

A-39

and in restraining defendants from enforcing the rule in

the future.

3. Because the trial court did not pass on the district

attorney’s additional contention that the evidence pre-

sented at the Commission hearing was insufficient to

sustain the remedial order under the requirements of

rule 7.10, we remand the case to the trial court for

resolution of that issue.

In addition to challenging the general validity of rule

7.10, the district attorney contends that the specific remedial

order at issue in this case is invalid and should be set aside.

Although the district attorney does not contest the Com-

mission’s findings that minority attorneys are significantly

underrepresented in his office or that it would be “feasible”

for the office to comply with the hiring order, he argues

that the evidence before the Commission does not support

the Commission’s finding that the current disproportion-

ately low percentage of minority attorneys in his office

resulted from discriminatory employment practices. Be-

cause of the asserted inadequacy of the record to support

this finding—which rule 7.10 itself establishes as a pre-

requisite to a remedial order under the regulation (rule

7.10, subd. (c¢)(2))—the district attorney maintains that

the order cannot stand.

As noted above, the trial court never passed on this issue,

finding it unnecessary to reach the question in light of its

findings of the facial unconstitutionality of rule 7.10. Under

the circumstances, we conclude that the case should be

remanded to the trial court to permit it to address the issue

in the first instance.

A-40

4. Conclusion

The affirmative action plan at issue in this case is but

another small but significant step in bringing about the

full participation of minority individuals in our society.

Although the essence of a democratic society lies in its

emphasis upon the rights of the individual, the implementa-

tion of those rights has been a long and arduous process.

The noble principles of the Constitution were not applied

to blacks for nearly a century of our country’s life. Even

with the adoption of the Thirteenth, Fourteenth and Fif-

teenth Amendments, overt racial discrimination against

blacks persisted and was condoned under the pernicious

“separate but equal” doctrine. Only in the last quarter

century, beginning with Brown v. Board of Education

(1954) 347 U.S. 483 and furthered by federal, state and

local civil rights legislation, have we undertaken a serious

and concerted effort to eliminate the pervasive discrimina-

tion long endured by minorities in our society. But the

endeavors of the 1950’s, 1960’s and 1970’s have revealed

that in light of the history and continuing realities of racial

discrimination, the negation of discrimination is frequently

not enough. We have found that affirmative steps are at

times necessary to overcome the legacy of the past degra-

dation of minorities and to bring minorities into full mem-

bership in American society. One such instance of that

essential affirmative action is the correc'ion of an em-

ployer’s past discriminatory employment practice by a race-

conscious hiring program such as that of the instant case.

The judgment is reversed and the case is remanded to the

trial court for further proceedings consistent with this

opinion.

TOBRINER, J.

WE CONCUR:

BIRD, C. J.

MANUEL, J.

NEWMAN, J.

A-42

Price v. Sacramento County Civil Service

Commission and County Board of Supervisors

S.F. 23836

I dissent.

The wry observation of Justice Rehnquist in his dissent

in Steelworkers v. Weber (1979) U.S. , _ ,* applies to

this case: “In a very real sense, the Court’s opinion is

ahead of its time: it could more appropriately have been

handed down five years from now, in 1984, a year coincid-

ing with the title of a book from which the Court’s opinion

borrows, perhaps subconsciously, at least one idea.” That

one idea is “doublethink,” the tortured abuse of words and

phrases so that their meaning and effect become inverted.’

Thus here the majority purport to eliminate discrimination

by means of creating discrimination; they construe equality

of all persons regardless of race to mean preference for

persons of some races over others; and a hiring program

which compels compliance by a reluctant district attorney is

described as voluntary. George Orwell is nodding com-

placently in his grave, as he wins vindication even before

1984 for his dire apprehensions about the misdirection of

society.

Further adopting doublethink, the majority attempt to

apply a semantic salve to their approval of the long-dis-

credited racial quota. They seem to believe the leopard’s

* Advance Report Citation: 47 U.S.L.Week 4851, 4858.

1In the “doublethink” and “Newspeak” of Orwell’s 1984 a key

word is “blackwhite.” It means a “loyal willingness to say that black

is white,” but in addition: “the ability to believe that black is

white, and more, to know that black is white, and to forget that

one has ever believed the contrary.” (Orwell, 1984 (1949) p. 175).

A-43

spots can be changed by calling them stripes, that a quota

is somehow less a quota if it bears the label of a “racial

hiring ratio” or a “race-conscious hiring program.” But

the spots are still evident. “Quota” is an abbreviated

version of the Latin “ quota pars,” meaning how great a

part, or the share or proportion assigned to each member

of a total body. One for two, as provided in the Civil

Service Commission order involved herein, is purely and

simply a racial quota.

Because of the emotion that often beclouds reason when

the subject of race is involved, perhaps a disclaimer is ap-

propriate at the outset of this dissent. No member of this

court need apologize for his record in opposing racial and

sexual discrimination. Over the years we have forthrightly

condemned unfair and discriminatory treatment of all per-

sons, regardless of racial or sexual origin, whether that

bias was manifest in racial restrictive housing covenants,

prohibition of miscegenous marriages, judicial proceedings,

employment opportunity or school segregation. We have

consistently viewed sympathetically every effort to promote

the American dream of equality of rights, duties and

opportunity.

That does not mean, however, that we must give carte

blanche approval to every proposal, however undemocratic,

made in the name of purportedly improving race relations.

Justice Powell, for himself and Justices Stewart and

Rehnquist, in dissenting from dismissal of certiorari in

Estes v. Metropolitan Branches of Dallas NAACP (1980)*

—U.S. —, — [62 L.Ed.2d 626, 634, — S.Ct. —] wrote, “The

pursuit of racial halance at any cost ... is without con-

A-44

stitutional or social justification. Out of zeal to remedy one

evil, courts may encourage or set the stage for other evils.”

Respondents, now with the imprimatur of the majority,

rely on a syllogism. Equality of opportunity is the goal of

our society; affirmative action is a desirable method of en-

abling those who have been victims of prior discrimination

to compete on a basis of equality; therefore in the name of

affirmative action we must employ the discredited quota

system, which is per se unequal and discriminatory, to

achieve the goal. I agree with the major premise of the

syllogism, and with the minor premise if all proponents

can subscribe to one definition of affirmative action.? The

syllogistic conclusion—calling for a resurrection of a racial

quota—is no more acceptable now than it was when the con-

certed opposition of intellectuals caused its demise several

decades ago.

Those who recall the nuwmerus clausus of many presti-

gious American universities before and after the turn of

the century have an uneasy feeling of deja vu. Now, how-

ever, the virus is spreading beyond the field of education

into employment and public service. Those who proposed to

recast our nation into a representative society, in which

ability is secondary to race and sex, are making progress.

The progress is attributable to political and social pres-

sures by aggressive exponents of the new racism, and to

If affirmative action means preparation and training for the

underprivileged so that they may have the skills to compete on a

basis of equality, then it is an essential program. But if affirmative

action is interpreted as justifying preferences in the actual compe-

tition for society’s benefits, then it is undemocratic and violative

of the equal protection clauses of the federal and state Constitutions.

A-45

apathy by those who still adhere to the traditional Ameri-

can ethic of achievement on the basis of merit.*

It was not many decades ago that racial and religious

quotas—the numerus clausus—governed admissions to a

great number of universities, particularly in their profes-

sional colleges. An enlightened attitude, prodded by aggres-

sive activity by persons devoted to promotion of democracy,

ultimately prevailed: educational institutions became con-

vinced that quotas are essentially undemocratic and unjust.

Now the trend, particularly in employment, is being re-

versed under new demands created by a combination of

guilt feelings for the sins of ancestors and overzealous-

ness by those who insist upon reconstructing a merit society

into a representative society.

As Professor Alexander Bickel pointed out in The

Morality of Consent (1975), pages 132-133: “A quota is a

two-edged device: for every one it includes it cuts Someone

else out. . . . If the Constitution prohibits exclusion of

blacks and other minorities on racial grounds, it cannot

permit the exclusion of whites on similar grounds; for it

must be the exclusion on racial grounds which offends the

Constitution, and not the particular skin color of the person

excluded.

“The lesson of the great decisions of the Supreme Court

and the lesson of contemporary history have been the

8The aggressive proponents of the new racism are actually a

small segment of the nation’s population. Only 11 percent of the

people favor preferential treatment; even among non-whites, only

30 percent favor preferences over selection on ability. (Lipset &

Schneider, The Bakke Case: How Would it be Decided at the Bar

of Public Opinion (1978) 1 Public Opinion 38.

A-46

same for at least a generation: discrimination on the

basis of race is illegal, immoral, unconstitutional, inher-

ently wrong, and destructive of democratic society. Now

this is to be unlearned and we are told that this is not

a matter of fundamental principle but only a matter of

whose ox is gored. Those for whom racial equality was

demanded are to be more equal than others. Having found

support in the Constitution for equality, they now claim

support for inequality under the same Constitution. Yet

a racial quota derogates the human dignity and individu-

ality of all to whom it is applied; it is invidious in principle

as well as in practice. Moreover, it can as easily be turned

against those it purports to'help. The history of the racial

quota is a history of subjugation, not beneficence. Its

evil lies not in its name but in its effect; a quota is a

divider of society, a creator of castes, and it is all the

worse for its racial base, especially in a society des-

perately striving for an equality that will make race

irrelevant.”

But, argue exponents of the new race-consciousness,

their scheme is different: they now propose to use the

quota to include, not exclude, racial groups. The answer is

obvious: for every person quota-ed in, another is quota-ed

out. There is no way in which a numerical quota can be

benign. If it favors one, it necessarily rejects another.

In the case at hand, the Civil Service Commission

ordered the racial quota to remain in effect until “the

percentage of minorities in the classes of Attorney I and

A-47

Attorney II in the District Attorney’s office is 8%.”* Why

the figure should be 8 percent, and not 4 percent, 16 per-

cent, or 32 percent is not revealed. What is evident,

however, is that merit is not the goal, but racial repre-

sentation in a specific percentage probably related some-

what to that existing in either the community population

or the work force.

This requirement of proportionality is inspired by an

anachronistic vision of an ideal society, one pervaded by

ethnic identification. In that society toward which we are

being propelled, the numerical proportionality of races

is the principal measure for distribution of society’s bene-

fits—not merit, not objective qualification, not competitive

achievement.

The foregoing is not a fanciful observation. It can be

read into the commission’s order and also into Justice

Brennan’s separate opinion in University of California

Regents v. Bakke (1978) 438 U.S. 265, in which he wrote:

“ ,.. States also may adopt race-conscious programs

designed to overcome substantial, chronic minority under-

representation where there is reason to believe that the

evil addressed is a product of past racial discrimination.”

(Id., p. 366.) In other words, race-conscious—read: dis-

criminatory—programs are valid so long as “the evil

addressed” is the result of racial discrimination; but “the

evil” is used not to describe racial discrimination but

“minority underrepresentation.” It is minority under-

‘This may give an impression of being a mere temporary ex-

pedient. But the French, with a cynicism born of experience, have

an appropriate saying: “rien ne dure comme le provisoire” (nothing

lasts like the provisional).

A-48

representation that is considered evil per se. Implicit in

this premise to which the Civil Service Commission, and

now the majority of this court subscribe, is that it is not

racial discrimination per se that is objectionable, but the

fact that the social structure fails to conform to their

concept of model representative employment practices.

This court should not approve the imposition of a

racially representative utopia on the people of any politi-

cal subdivision. As Justice Douglas insisted in his dissent

in DeFunis v. Odegaard (1974) 416 U.S. 312, 342, such a

concept runs counter to the very theory of equal protec-

tion: “The State, however, may not proceed by racial

classification to force strict population equivalencies for

every group in every occupation, overriding individual

preferences. The Equal Protection Clause commands the

elimination of racial barriers, not their creation in order

to satisfy our theory as to how societ’ ought to be

organized.”

It is now clear that undergirding much of the rhetoric

supporting racial quotas, and preferential treatment in

general, is a view of justice that demands not that the

state treat its citizens without reference to their race, but

that it rearrange and index them precisely on the basis

of their race. The objective is not equal treatment but

equal representation.

_ The majority here rely primarily on two recent Supreme

Court cases: Bakke and Weber. Neither lends them any

comfort; indeed, both support the conclusion of the

trial court,

A-49

In our decision in Bakke this court manifested specific

disapproval of racial quotas. (Bakke v. Regents of

University of California (1976) 18 Cal.38d 34, 62.) We

declared that no program “in history has been so

thoroughly discredited in contemporary times as the use

of racial percentages.” The doctrine of stare decisis should

dictate adherence to that elementary truth a bare three

years after it was declared. Previous opinions, particu-

larly when approved in substance by the United States

Supreme Court, remain binding, even though, to use the

words of Justice Marshall, “the composition of this Court

has radically changed.” (Lloyd v. Tanner (1972) 407 U.S.

551, 584 (Marshall, J., dis.).)

Since they cannot rely on a single prior decision of this

court, the majority devote many pages of analysis in a

futile effort to avoid the reality of the United States Su-

preme Court decision in Bakke. It can be argued that con-

clusions about individual justices’ opinions lie in the eye

of the beholder. But no matter how disingenuous the ma-

jority here become, they cannot escape the one undeniable

result: the Davis medical school 84-16 admission quota

plan was declared invalid and Allan Bakke, a white male

who alleged racial discrimination because of the quota, was

ordered admitted to the school.

If there be any doubt, here are the key holdings of Jus-

tice Powell in his lead opinion for himself and for Chief

Justice Burger, Justices Stewart, Rehnquist and Stevens:

“In summary, it is evident that the Davis special admis-

sions program involves the use of an explicit racial classifi-

cation never before cowntenanced by this Court. It tells

A-50

applicants who are not Negro, Asian, or Chicano that they

are totally excluded from a specific percentage of the seats

in an entering class .... The fatal flaw in [the Davis]

preferential program is its disregard of individual rights

as guaranteed by the Fourteenth Amendment.” (438 U.S.

at pp. 319-320; italics added.) Therefore, held the Supreme

Court (at p. 320), “that portion of the California court’s

judgment holding [the Davis] special admissions program

invalid under the Fourteenth Amendment must be

affirmed.’”®

Among the strange arguments advanced to justify racial

quotas is criticism of Justice Powell’s opinion in Bakke

declaring that equal protection “cannot mean one thing

when applied to one individual and something else when

applied to a person of another color. If both are not ac-

corded the same protection, then it is not equal.” (Jd. at

pp. 289-290.) One would have thought that principle to

be unexceptionable, but do not underestimate the guile of

the prolific apologists for modern racism.

The Powell passage is “quotable” but “ill-considered,”

writes Kenneth W. Simons in Philosophical Perspectives

on Affirmative Action (1979) 77 Mich.L.Rev. 513, 518-519.

“Courts may treat the discriminations differently ... blacks,

but not whites, fall under it.” In other words, equal pro-

tection depends upon skin pigmentation! I cite this as an

illustration of the excesses and the obscurantism which per-

meate the drive to restructure ours into a wholly repre-

‘The only portion of our Bakke judgment reversed was that

which prohibited all consideration of race. The high court would

permit an admissions program “involving the competitive consid-

eration of race and ethnic origin.” (438 U.S. at 320.)

A-51

sentative society. The majority fall into the same error:

paradoxically they perpetuate elitism in order to preserve

egalitarianism.

Parenthetically, I note that in his Bakke opinion and

appendix Justice Powell referred with approval to the

admissions policies of Harvard University. The history of

Harvard on racial quotas is instructive. In 1922, then Pres-

ident Lowell made a public statement, declaring that racial

quotas were under consideration, words that were ominous

in the xenophobic post-World War I milieu. A Committee

of Thirteen was appointed by the Overseers in 1922 and

ultimately submitted a report firmly rejecting the notion

of racial quotas. The faculty adopted the report, and it

has remained university policy to this day. (See Dean

Rosovsky, From Periphery to Center, Harv. Magazine

(Nov.-Dee. 1979) p. 81 ff.)

Consistent with the views of Harvard on quotas, the

court in Bakke not only did not approve, but specifically

invalidated the 84-16 quota system used at Davis. Thus

reliance on Bakke is clearly counterproductive to the ma-

jority. Next they lean heavily but with equal futility on

Weber, a case in which five justices did uphold a racial

classification program at the plant of the Kaiser Aluminum

& Chemical Corporation, a private employer, which had

entered into an employment contract with the United Steel-

workers of America, a union representing the private em-

ployees. (Justices Powell and Stevens, who had been in the

Bakke majority, did not participate in Weber.)

Weber, as stressed repeatedly by its majority, is fae-

tually inapposite to a compulsory program involuntarily

A-52

imposed on and by a public agency. Justice Brennan, writ-

ing the lead opinion in which Justices Stewart, White, Mar-

shall and Blackmun joined, declared over and over that

the Kaiser plan “does not involve state action” and there-

fore he emphasized “the narrowness” of the inquiry (id.,

p. ......). Indeed, on almost every page of his opinion, Jus-

tice Brennan spoke redundantly of the parties “voluntarily

agreeing” (id., p. ...... ), Congress “did not intend wholly

to prohibit private and voluntary” efforts (id., p. ......), Con-

gress did not intend to prohibit acts by “the private sector”

a Speen ), there is no absolute prohibition against “all

private, voluntary” action (id., p. ...... ), there is no “legis-

lative prohibition of all voluntary, private” efforts (id.,

i sinian ), legislators “resisted federal regulation of private

business” (id., p. ...... ), “Congress did not intend to limit

traditional business freedom to such a degree as to pro-

hibit all voluntary” action (id., p. ......), Title VIT “does not

condemn all private, voluntary” plans (id., p. ...... ), Title

VII permits discretion for plans adopted in “the private

sector voluntarily” (id., p. ......).

If there is any other manner of expression by which the

Supreme Court could have made it more clear in Weber

that it approved the plan because it was voluntary, not

involuntary as here, and in private industry, not in the

public realm as here, it escapes me as it apparently eluded

Justice Brennan. I am confident, in view of the obvious

significance of its repeated and emphasized qualifications,

that the Supreme Court would have reached a contrary

result if racial preferences had been imposed involuntarily

by a public agency and affected public employment.

A-53

In short, just as there is no California authority there

is no persuasive rationale in United States Supreme Court

cases supporting compulsory imposition of racial quotas

in public employment.

Finally, the majority read Title VII of the federal Civil

Rights Act as if it were designed to protect minorities only.

This view offends the thoughtful opinion of Justice Mar-

shall for a unanimous court in McDonald v. Santa Fe Trail

Transp. Co. (1976) 427 U.S. 273. He reviewed the con-

gressional history of Title VII and concluded it “was in-

tended to ‘cover white men and white women and all Amer-

icans’” and it created an “ ‘obligation not to discriminate

against whites’ ” (7d., p. 280). A quota system that excludes

whites from one out of three appointments to public em-

ployment solely on the basis of their race is manifestly

discriminatory.

It is significant that in his Weber opinion Justice Bren-

nan did not quarrel with McDonald. Indeed, he declared

that an argument based on McDonald was “not without

force” but he found it not to be controlling because the

Kaiser plan in Weber was “voluntarily adopted by private

parties.” (Weber, at p. ....... ) Once again the implication is

clear that if a compulsory program for public employment

was involved, McDonald would control.

Griggs v. Duke Power Co. (1971) 401 U.S. 424, 430-431,

another unanimous decision, clearly holds Title VII “does

not command that any person be hired simply because he

was formerly the subject of discrimination, or because he

is a member of a minority group. Discriminatory prefer-

ence for any group, minority or majority, is precisely and

A-54

only what Congress has proscribed. What is required by

Congress is the removal of artificial, arbitrary, and un-

necessary barriers to employment when the barriers op-

erate invidiously to discriminate on the basis of racial or

other impermissible classification.”

Under compulsion of Weber I would be required to agree

with the majority that a voluntary program in private

enterprise would not offend Title VII.° But that is not this

case—I repeat: this is a compulsory program in public

employment, an employment paid by the taxpayers of all

races and both sexes. The majority nevertheless indulge

in a travesty of retroactive myth to bend the history of

Title VII, and its unequivocal language, to serve the very

purpose the act was intended to prohibit. Justice Rehnquist

reminds us of the congressional history in his devastating

dissent in Weber. Senators Humphrey, Dirksen, Kuchel,

Clark and Case, ardent proponents of the Civil Rights Act,

assured their colleagues over and over that racial quotas

were not contemplated and were unacceptable. To assert

otherwise is flagrant history revisionism.

One illustration will suffice. On March 30, 1964, Senator

Hubert H. Humphrey led the debate in the Senate on the

Civil Rights Act. He analyzed the measure, section by sec-

tion, in order to persuade the Senate to adopt the proposal,

which had both bipartisan support and opposition. When

Senator Humphrey came to Title VII, he reassured the

Congress as follows:

"Racial quotas in private industry have never been approved by

this court. Indeed, we specifically disapproved such hiring prac-

tices in Hughes v. Superior Court (1948) 32 Cal.2d 850, 856.

A-55

“Contrary to the allegations of some opponents of this

title, there is nothing in it that wil give any power to the

Commission or to any court io require hiring, firmg, or

promotion of employees m order to meet a racial ‘quota’

or to achieve a certain racial balance. [J] That bugaboo

has been brought up a dozen times; but it is nonexistent.

In fact, the very opposite is true. Title VII prohibits dis-

crimination. In effect, it says that race, religion and na-

tional origin are not to be used as the basis for hiring and

firing. Title VII is designed te encourage hiring on the

basis of ability and qualifications, not race or religion. [{]

In Title VII we seek to prevent discriminatory hiring prac-

tices. We seek to give people an opportunity to be hired

on the basis of merit... .” (Italics added.)

Dr. John H. Bunzel, former President of San Jose State

University, has concluded that “When the Civil Rights Act

of 1964 was passed, Congress reflected the general norma-

tive consensus that Americans wanted not only to eliminate

discrimination but to make employment opportunity inde-

pendent of race, colour, religion, sex or national origins.

The law intended to ‘bring Americans together’, not to

separate them into categories. It was a sentiment expressed

by individuals and groups from every walk of life who

participated in the legislative process that gave political

sanction not to racially preferential treatment, or special

privileges for some, or the concept of statistical parity

among groups, but to the elimination of discrimination

against anyone.” (Bunzel, Affirmative Action, Negative

Results, Encounter (Nov. 1979) 43, 51.)

The Supreme Court majority in Weber avoided the con-

gressional history by drawing a distinction between re-

a“

A-56

quiring quotas and permitting quotas. The former is pro-

hibited, the latter tolerable.

Accepting that rational at face value, I would hold that

the Civil Service Commission’s quota must fall. There can

be no question that its formula is compulsory, the District

Attorney being compelled to adhere to it in all hiring. And

obviously, the emphasis placed in Weber on private indus-

try cannot be related to public employment which by law

must be governed by merit selection. Sac. County Char-

ter, art. XVI, § 71-F, subds. (a)-(c).) The majority try in

vain to find authorization for racial quotas in county char-

ter Sections 61 and 71-F, subdivision (f). But the sections,

recited in footnote 7 of the majority opinion, pointedly

prohibit discrimination on the basis of race, color, creed,

sex, national origin or political affiliation. Some exception is

provided for “economically, socially, physically or mentally

deprived persons” of all races. The Civil Service order in

this case does not involve any of such persons, only the

prohibited categories of race and sex.

While I need not discuss the merits of the commission’s

program, or of rule 7.10 upon which it is based, I cannot

resist observing that the scheme is hopelessly flawed and

that it is unlikely to serve the purpose for which it is

purportedly devised.

Rule 7.10 provides that minority personnel shall be

appointed in a number “necessary to attain a fair approxi-

mation of minority representation in the classification

consistent with the population mix in the County of Sacra-

mento.” Minorities are defined as “Blacks, Indians, Mexican-

Americans, Spanish-Americans, Orientals, other non- Whites

A-57

and women.” Whoever drafted that definition obviously

lacked knowledge of modern demography, for women, ever

since World War II, have been a majority in our society,

not a minority.

Under the rule, however, the district attorney could

appoint one white female for every two white males and

he would satisfy the commission. But would he satisfy the

Blacks, Indians, Mexican-Americans, Spanish-Americans,

Orientals or other non-Whites? I doubt it. The result would

be what historians call the Law of Unintended Conse-

quences. See, e.g., White, In Search of History (Warner

Books ed 1979) p. 304,

Therein lies one of the numerous vices in compelling such

artificial devices as racial quotas in employment. Inevitably

one minority group will not be placated by the selection of

a member of another group. Even if it were possible for

representation to be predicated on population, a qualified

Samoan or Eskimo would have no chance of employment

because the numbers of his race in our state population

total is infinitesimal.

There are innumerable other imponderables that emerge

in the race-typing business. I suggest only a cursory

sample. What percentage of blood makes one a Black or

an Indian—75 percent, 50 percent, 25 percent? Does the

term Indian apply to native Americans or to natives

of India? The Spanish-American category would include

a person from Argentina, but not one from Brazil because

the latter would be a Portuguese-American. How long is a

person deemed to be a Mexican-American before he loses

the hyphenation—for one generation after his parents

A-58

crossed the border, for two generations, forever? Why are

only racial minorities enumerated and not religious minor-

ities, when it is a fact of history that religious discrimina-

tion has been a pervasive element in American life from

early colonial days?’

These defects are not endemic to the Sacramento pro-

gram alone, they are the inevitable by-product of injection

of race as an employment qualification. Thus they, or

similar fatal flaws, would appear in any employment

scheme that emphasized race, or group characteristics,

rather than individual merit.®

"For a discussion of other insoluble dilemmas in assigning bene-

fits: to which races, how much to each race, which test of race is

to be used, see Van Alstyne, Rites of Passage (1979) 46 U.Chi.L.

Rev. 775, 804-808.

®Vertification of confusing and false ethnic claims for purposes

of teacher assignment plagued the Los Angeles Unified School Dis-

trict in 1976 and 1977. To avoid being included in a compulsory

program involving transfer to a distant school, some white teachers

were declaring themselves black, some black teachers insisted they

were white, others were asserting they were of American Indian

origin.

The district thereupon created an Ethnic Designation Committee

which promulgated a precise series of proof requirements to es-

tablish the ethnicity of teachers. The criteria employed by the

district to determine the ethnic makeup of individual teachers

included: verification of racial or ethnic ancestry to the grand-

parents’ generation; birth certificates of the individual and his

parents and grandparents; affidavits by a school administrator and

a clergyman attesting to the teacher’s racial identity. (See Los

Angeles Unified School District, Memorandum No. 10, Feb. 2,

1977.)

This tracing of blood lines back to grandparents by a public

agency bore remarkable similarity to the Nuremberg Laws of Nazi

Germany, a fact that did not escape the attention of some civil

rights groups in Los Angeles. After a public protest, on May 18,

A-59

The district attorney pointed out that he had practical

difficulty in recruiting minorities because most of those

who were well qualified preferred to accept appointment

from the public defender or other governmental agencies.

This problem of selecting qualified persons for profes-

sional employment was mirrored in comments about the

judiciary by then Attorney General Griffin Bell in an

address to the American Law Institute on May 18, 1979

(63 Judicature at p. 118): “The influx of women and

minorities into the bar is still a recent phenomenon, and

there is not yet a large pool of women and minority law-

yers of sufficient maturity and experience ... Thus, the

process is fraught with tension... .” As to this tension,

the President of the United States on Law Day, 1979,

declared firmly that “Basing present discrimination on

past discrimination is obviously not right.” (47 U.S.L.

Week 2726.)

In October 1977, the United States Commission on Civil

Rights issued a formal statement on affirmative action.

In it the commission urged removal of “institutional

obstacles to equal employment opportunity” (italics

added), and while it encouraged achievement goals, it time

and again warned against fixed racial quotas. (See U.S.

Com. on Civil Rights, Toward an Understanding of Bakke

(1979) p. 183.) Its conclusion was, that although we are

far from achieving our goal, the “aspiration of the Amer-

ican people is for a ‘colorblind’ society, one that ‘neither

1977, the district announced it would no longer implement Memo-

randum No. 10.

It will be recalled that the racial identification policies of Nazi

Germany began with the civil service.

A-60

knows nor tolerates classes among citizens’.” Again in its

November 1979 bulletin (Civil Rights Update) the com-

mission reported that the Department of Health and Social

Services has issued guidelines on college admission poli-

cies “without violating the ban on strict racial or ethnic

quotas in the U.S. Supreme Court’s Bakke decision.”

Thus it is clear that the federal agency directly concerned

with eliminating discrimination understands, as a matter

of administrative interpretation, that racial quotas are

forbidden.

A few apologists for racial quotas are becoming some-

what restive at the excesses such programs spawn.

Professor Bernhardt, while analyzing and approving

Weber in 65 A.B.A.J. 1321, concludes by warning that

“Allowing choice based on race admittedly is a dangerous

step, and future developments should be watched to pre-

vent affirmative action programs from becoming a new

tyranny.” We are, indeed, on the pathway to that new

tyranny.

Justice Black once declared, “Great nations, like great

men, should keep their word.” (F.P.C. v. Tuscarara Ind.

Nat. (1960) 362 U.S. 99, 142.) Our nation gave its word

over and over again; it promised in every document of

more than two centuries of history that all persons shall

be treated equally. However it is rationalized, a preference

to any group constitutes inherent inequality. Moreover

preferences, for any purpose, are anathema to the very

process of democracy. As Justice Murphy wrote, “We of

this nation are one people undivided in ability or free-

dom by differences in race, color or creed.” (Akins v. Texas

(1945) 325 U.S. 398, 410.)

A-61

At the dawn of a new decade, this court has a rare op-

portunity to offer a ringing declaration in support of racial

equality. Unfortunately the majority elect to approve a pre-

ferential and undemocratic program of expediency; the

result is likely te convert the 1980’s to a decade of disillu-

sionment, an era in which “racism, racial spoils systems,

racial competition, and racial odium will be fixtures of gov-

ernment in the United States even into the twenty-first

century.” (Van Alstyne, supra, 46 U.Chi.L.Rev. at p. 78.)

We must, in the words of Justice Jackson, “avoid these

ends by avoiding these beginnings.” (West Virginia State

Bd. of Educ. v. Barnette (1943) 319 U.S. 624, 641.)

In addition to all else, the revival of racial quotas tragi-

cally denigrates the eloquent words of the first Justice Har-

lan, dissenting in Plessy v. Ferguson (1896) 163 U.S. 537,

words that have served as an inspiration to civil rights

advocates for more than eight decades: “Our Constitution

is colorblind, and neither knows nor tolerates classes among

citizens. In respect of civil rights, all citizens are equal

before the law. The humblest is the peer of the most power-

ful... . It is, therefore, to be regretted that this high

tribunal, the final expositor of the fundamental law of the

land, has reached the conclusion that it is competent for a

State to regulate the enjoyment by citizens of their civil

rights solely upon the basis of race.”

Racism will never disappear by employing devices of

classifying people and of thus measuring their rights.

Rather, wrote Professor Van Alstyne, “one gets beyond

racism by getting beyond it now: by a complete, resolute,

and credible commitment never to tolerate in one’s own

A-62

life—or in the life or practices of one’s government—the

differential treatment of other human beings by race. In-

deed, that is the great lesson for government itself to

teach: in all we do in life, whatever we do in life, to treat

any person less well than another or to favor any more

than another for being black or white or brown or red, is

wrong. Let that be our fundamental law and we shall have

a Constitution universally worth expounding.” (46 U.Chi.

L.Rev. at pp. 809-810.)

There is no United States Supreme Court case upholding

racial quotas in public employment. There is no California

case upholding racial quotas in any employment. The ma-

jority opinion is wholly unsupported by precedent and

worse, it is regressive in concept. Therefore, I agree with

the Court of Appeal that the judgment of the trial court

should be affirmed.

MOSK, J.

WE CONCUR:

CLARK, J.

RICHARDSON, J.

A-63

S.F. No. 23836

In the Supreme Court

of the

State of California

Appeal

County Sacramento

Superior Court No. 257623

John M. Price, as District Attorney, ete., j

Plaintiff and Respondent,

Vs.

Civil Service Commission of Sacramento

County et al.,

Defendants and Appellants.

The above-entitled cause having been heretofore fully

argued, and submitted, it is Ordered, Adjudged, and

Decreed by the Court that the Judgment of the Superior

Court of the County of Sacramento in the above-entitled

cause, is hereby reversed and the case is remanded to the

trial court for further proceedings consistent with the

opinion of the Court. Appellants shall recover their costs

on appeal.

) 2 , Clerk of the Supreme Court of the State

of California, do hereby certify that the foregoing is a true

copy of an original judgment entered in the above-entitled

cause on the 25th day of January, 1980.

A-64

Witness my hand and the seal of the Court, this 21st day

of March, 1980.

[SEAL]

Clerk

By G. E. SCHNEIDER

Deputy

A-65

S.F. No. 23836

In the Supreme Court

' of the

State of California

John M. Price, as District Attorney, ete., 7

Plaintiff and Respondent,

VS.

Civil Service Commission of Sacramento

County et al.,

Defendants and Appellants.

[Filed Mar. 20, 1980]

MODIFICATION OF OPINION

The dissenting opinion herein, appearing at 26 Cal.3d

257, is modified by striking the last sentence of text on page

287, and substituting therefor the following: Justice Powell,

for himself and Justices Stewart and Rehnquist, in dissent-

ing from dismissal of certiorari in Estes v. Metropolitan

Branches of Dallas NAACP et al. (1980) ...... SII aihicsag cercan

(48 U.S. L. Week 4118, 4122) wrote, “The pursuit of racial

balance at any cost... is without constitutional or social

justification. Out of zeal to remedy one evil, courts may

encourage or set the stage for other evils.”

A-66

S.F. No. 23836

In the Supreme Court

of the

State of California

IN BANK

Price, as District Attorney, ete.

vs.

Civil Service Commission of Sacramento et al.

[Filed Feb. 19, 1980]

The time for granting or denying a rehearing in the

above cause is hereby extended to and including March 25,

1980 or the date upon which a rehearing is either granted

or denied.

/s/ BIRD

Chief Justice

A-67

S.F. 23836

In the Supreme Court

of the

State of California

John M. Price, as District Attorney, etc., |

Plaintiff and Respondent,

vs.

Civil Service Commission of Sacramento

County et al.,

Defendants and aacaaas

[Filed Mar. 20, 1980]

ORDER

PETITION FOR REHEARING is denied.

A-68

In the Court of Appeal of the

State of California

Third Appellate District

3 Civil No. 16302

Jan. 30, 1978

;

John M. Price, as District Attorney, etc.,

Plaintiff and Respondent,

vs.

The Civil Service Commission of Sacra-

mento County et al.,

Defendants and Appellants.

OPINION

Friedman, J.—The Civil Service Commission of Sacra-

mento County promulgated rule 7.10, establishing a

minority quota hiring system whenever necessary to

remedy an imbalance in county agencies.’ After hearings,

the commission issued an order finding that minorities were

under-represented among the attorney personnel of the

Sacramento District Attorney’s office; that the under-

representation resulted from unintentionally discrimina-

tory practices, including “unvalidated” oral examinations

and insufficient recruitment efforts. The order directed that

appointments in the Attorney I (the entry level) classifi-

cation in the district attorney’s office be made “on the basis

of an alternating ratic of 2:1 so that at least one minority

‘Rule 7.10 defines “minority personnel’ to include Blacks, Indians,

Mexican-Americans, Spanish-Americans. Orientals other non-Whites

and women.

A-69

person is appointed for every two non-minority persons”

until the percentage of minorities in the Attorney I and

Attorney IT classes reached 8 percent.

The district attorney filed a mandate petition in the

superior court, naming as defendants the civil service com-

mission and the board of supervisors. His petition sought

abrogation of the commission’s rule and order. The trial

court granted a peremptory writ, concluding that the civil

service commission’s rule and order on their face uncon-

stitutionally discriminated against nonminority persons.

The defendants appeal.

We sustain the trial court’s ruling but without passing

upon the denial-of-equal-protection theory adopted by the

trial judge. Courts do not engage in constitutional inquiries

when other grounds of decision are available. (Palermo v.

Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65-66 [195

P.2d 1].) We have concluded that the minority preference

order of the civil service commission violates the Sacra-

mento County Charter and exceeds the authority granted

by title VII of the federal Civil Rights Act of 1964.

The district attorney has standing to maintain this law-

suit. Public officials possess the powers expressly granted

by law and such additional powers as may fairly be implied

from those expressly granted. (In re Cathey (1961) 55

Cal.2d 679, 689 [12 Cal.Rptr. 762, 361 P.2d 426].) The

district attorney is authorized to appoint deputies “for the

prompt and faithful discharge of the duties of his office.”

(Gov. Code, § 24101.) Subject to valid restrictions imposed

by the civil service system, the district attorney has implied

power to select and promote deputies in such manner as he

A-70

believes will best promote the efficiency and effectiveness of

his office. When, in his opinion, a civil service restriction

upon his power of appointment is illegal, the maintenance

of a lawsuit to test its validity is within his implied

authority.’

Sacramento is a chartered county. Article XVI of the

charter deals with personnel administration. Section

71-B(a) of article XVI empowers the civil service com-

mission to establish rules for the selection and classification

of civil service employees. Section 71-C(b) directs the

county executive to classify civil service positions and to

administer examinations, subject to approval of the com-

mission. Section 71-F declares that all appointments in the

civil service “shall be based on relative fitness as ascer-

tained by competitive examinations;” that eligible lists

shall be established containing names of successful candi-

dates in the order of their standing in examination; that

an appointment shall be made from among the eligibles

whose scores at the time of certification represent the three

highest ranks on the list. Section 71-F(f) prohibits any

favor or discrimination among applicants or employees

because of race, color, creed, sex, national origin or

political affiliation.

*Safer v. Superior Court (1975) 15 Cal.3d 230, 240 [124 Cal.Rptr.

174, 540 P.2d 14], is not apropos. There the court barred a district

attorney from intervening in a contempt proceeding stemming from

private civil litigation, holding that neither “specific” statute nor .

inherent power permitted it. In demanding “specific” statutory

authority, the court rejected the concept of a vague penumbra of

powers to participate in a civil proceeding. A power may be

“specific though implied. Unlike the present case. Safer did not

deal with an express grant of authority from which an implied,

specific power might be drawn,

A-71

The rules of the civil service commission contain a sec-

tion 5 dealing with examinations. Section 5 commences

with the following r

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