Amicus Curiae Brief — Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville

No. 91-1721 A

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

NORTHEASTERN FLORIDA CHAPTER OF THE

ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

Petitioner,

V.

CITY OF JACKSONVILLE, FLORIDA AND TOMMY

HAZOUR]I, in his official capacity as Mayor

of the city of Jacksonville,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF THE STATES OF OHIO AND MICHIGAN

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

FRANK J. KELLEY LEE FISHER

Attorney General of Attorney General of Ohio

Michigan

P.O. Box 30212 ANDREW |. SUTTER

Lansing, Michigan 48909 (Counsel of Record)

(517) 373-1124 Assistant Attorney General

Chief Counsel's Staff

30 East Broad Street, 15th Floor

Columbus, Ohio 43266-0410

(614) 466-2872

Counsel for Amici States of Ohio and Michigan

Page

WS GP GPU PUPUUD «ccc sce cceccecessenesdse iii

INTERES) OF ANGI CUTMAE nnn cc cccccccccccceses 1

ee a | ae 2

RD 9:0 0466506006566 00454000004000006688 3

TABLE OF CONTENTS

SUBSEQUENT TO THE FILING OF THE

PETITION FOR CERTIORARI IN THIS CASE,

RESPONDENTS REPEALED THE LEGIS-

LATION BEING CHALLENGED HEREIN AND

REPLACED IT WITH A SIGNIFICANTLY

DIFFERENT LEGISLATIVE SCHEME.

CONSEQUENTLY, THIS CASE IS MOOT AND

SHOULD BE DISMISSED. IN THE ALTER-

NATIVE, BECAUSE THE CHANGES IN

LEGISLATION MAKE IT DIFFICULT TO

ADJUDICATE THIS CASE BASED ON THE

PRESENT RECORD, THE JUDGMENT OF

THE COURT BELOW SHOULD BE VACATED

AND THE CASE REMANDED WITH

INSTRUCTIONS TO PERMIT PETITIONER

TO AMEND ITS COMPLAINT .............

DR Fe ED pc cccccavecovecsecs

B. At The Very Least, The Judgment

Should Be Vacated And The Case

Remanded For Additional Pro-

SS Sb ecdnsactbsessedsceccess

THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT PETITIONER LACKS

STANDING TO CHALLENGE JACKSONVILLE’S

PE PUD ccc rcccceccescosncescess

a |

A.

Page

MBE Programs Are Important Tools

For Eradicating Documented

Discrimination. An Associational

Plaintiff Must, Therefore, Plead

Sufficient Facts To Demonstrate Its

SianGing WO GUS. .cccceseccsseuesanun 10

The Judgment Below Was

Mandated By This Court's Prior

Cases OF GIARGING. .cccccccsesssencs 11

The Formulation For Standing

Offered by Amici States Ohio And

Michigan Best Serves Public

a STITT 15

CONCLUGION .nnccccccccccccseosessesssssseunen 17

APPENDIX

TABLE OF AUTHORITIES

CASES Page

Allen v. Wright, 468 U.S. 737 (1984) ............ 12, 15

Board of Airport Commissioners of the

City of Los Angeles v. Jews for Jesus, /nc.,

Be Ws PE UMED ccc c ccc cccecccccccccccccsece 7

City of Mesquite v. Aladdin's Castle, Inc.,

i reek cca ceenccecccecccese 5-7

City of Richmond v. J.A. Croson Co.,

~~ cieecaceeeséeccceccece 4,5,7, 10

Diffenderfer v. Central Baptist Church,

i creer ck keeseeeesccecees 2, 8-10

Duke Power Company v. Greenwood County,

i cce cee scence sccceccccccceces 4

Fusari v. Steinberg,

Cee oc eccces 2,7-9

Lujan v. Defenders of Wildlife,

ee eee MOP CCEED coccccecs 11, 16

Princeton University v. Schmid,

466 U.S. 100 (1962)... cece cece cccnees 2,4,5,7,9

United States v. Munsingwear,

TT ccc ed secccéscceccccccccce 4,8,9

University of California Regents v. Bakke,

GSB UD. BEB CTOTE) .n nc cccccccccccccces 3, 12, 14, 15

Village of Arlington Heights v. Metropolitan

Housing Corp., 429 U.S. 252 (1977) ...... 6.6.0 ue 12

Warth v. Seldin, 422 U.S. 490 (1975) .......... 3, 11-15

TABLE OF AUTHORITIES (cont'd.)

CASES Page

OTHER AUTHORITIES

City of Jacksonville Code Section

126.601-.613 (1988) 2... ccc cee eee eee eens 3

City of Jacksonville Coce Section

126.601 - 617 (1992) .......cceeecceeeceercccees 3

No. 91-1721

IN THE

| SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

NORTHEASTERN FLORIDA CHAPTER OF THE

| ASSOCIATED GENERAL CONTRACTORS OF AMERICA,

Petitioner,

V.

CITY OF JACKSONVILLE, FLORIDA and TOMMY

HAZOUARI, in his officia! capacity as Mayor

of the city of Jacksonville,

Respondents.

On Writ of Certiorari

To the United States Court of Appeals

For the Eleventh Circuit

BRIEF OF THE STATES OF OHIO AND MICHIGAN

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

The States of Ohio and Michigan have promuigated

minority business enterprise legislation (“MBE programs”)

designed to redress discrimination based on race, sex, or

nationality in respect to the award of public contracts.

Because these programs play an important role in leveling,

within constitutional limits, the playing field of government-

contract bidding, itis essential that any complaint challenging

an MBE program contain allegations reflecting unmistakably

the right of the plaintiff to sue. First and foremost, the

complaint must contain information sufficient to satisfy al!

the constitutiona! and jurisprudential requirements, including

standing, associated with invoking the jurisdiction of a federal

court.

In the instant case, Petitioner challenges the MBE program

of the city of Jacksonville and proffers what Amici States

assert is an incomplete test for establishing its standing to

sue. Petitioner's standard relaxes the traditional test for

evaluating standing, not only in general, but specifically in

respect to challenges to race-conscious programs. Because

this poses a threat to the proper operation of said programs

and will unnecessarily tax the lega! and financial resources

of any state employing such a program to help eradicate

discrimination, Amici states file this brief in support of

Respondents and urge this Court to affirm the judgment of

the United States Court of Appeals for the Eleventh Circuit.

SUMMARY OF ARGUMENT

1. Subsequent to the Court's grant of a writ of certiorari

in this case, ihe City of Jacksonville repealed the portion

of its Purchasing Code challenged by Petitioner and

substituted for it a significantly revised legislative scheme.

Consequently, this case is before this Court in a posture

similar to that of Princeton University v. Schmid, 455 U.S.

100 (1982) (per curiam), a case rendered moot by /egisiative

changes, or Fusari v. Steinberg, 419 U.S. 379 (1975), in which

the Court determined that substantive changes in_the

legisiation in question prevented the Court from

“meaningfully .. . assess[ing] the issues in this appeal on

the present record.” /d. at 387. As a result, this action should

be remanded with instructions to the courts below to dismiss

without prejudice, or the judgment should be vacated and

the case remanded with instructions to give Petitioner a

reasonable opportunity to amend its complaint. See id., 419

U.S. at 390. See also Diffenderfer v. Central Baptist Church,

404 U.S. 412, 412 (1972).

2. Inthe event this Court chooses to address the question

of standing, it must do so “in light of [Jacksonville] law as

it stands now, not as it stood when the judgment below was

entered.” Diffenderfer, 404 U.S. at 414. Under the new or

old Jacksonville MBE program, however, Petitioner's theory

for establishing its standing represents a departure from the

Court's historical perspective on the subject and is

inconsistent with the Court's application of the standing

doctrine in relevant cases, such as University of California

Regents v. Bakke, 438 U.S. 265 (1978), and Warth v. Se/din,

422 U.S. 490 (1975).

ARGUMENT

1. SUBSEQUENT TO THE FILING OF THE

PETITION FOR CERTIORARI IN THIS CASE,

RESPONDENTS REPEALED THE LEGIS-

LATION BEING CHALLENGED HEREIN AND

REPLACED IT WITH A SIGNIFICANTLY

DIFFERENT LEGISLATIVE SCHEME.

CONSEQUENTLY, THIS CASE IS MOOT AND

SHOULD BE DISMISSED. IN THE ALTER-

NATIVE, BECAUSE THE CHANGES IN

LEGISLATION MAKE IT DIFFICULT TO

ADJUDICATE THIS CASE BASED ON THE

PRESENT RECORD,THE JUDGMENT OF THE

COURT BELOW SHOULD BE VACATED AND

THE CASE REMANDED WITH INSTRUCTIONS

TO PERMIT PETITIONER TO AMEND ITS

COMPLAINT.

The Eleventh Circuit ruled that Petitioner did not have

standing to challenge Jacksonville's MBE program and

remanded the case to the district court with instructions to

dismiss without prejudice. Subsequent to the judgment below

and the grant of certiorari, the City of Jacksonville repeated

the ordinances challenged in this case and replaced them

with a new legislative scheme. Compare City of Jacksonville

Ordinance Code § 126.601-.613 (1988), with City of

Jacksonville Ordinance Code § 126.601- 617 (1992). See

Appendix to Respondent's Motion to Dismiss. This turn of

events has rendered this case moot, or, at the very least,

has made additional review by the lower courts necessary.

A. This Case is Moot.

1. Petitioner, plaintiff below, challenges Jacksonville's

MBE program, which “sets aside’ for minority businesses

a smal! percentage of the city’s construction work, because

it allegedly bars Petitioner's non-minority members from

competing for that work and because it was established

without the benefit of a formal study documenting the

existence of prior discrimination within Jacksonville, as

required by this Court's decision in City of Richmond v.

Croson Co., 488 U.S. 469 (1989). See Complaint, Joint

Appendix at 7. According to Respondent's Motion to Dismiss

as Moot, however, the ordinance actually under attack has

been repealed and replaced with an MBE program that is

significantly different: not only was the new ordinance

promulgated after a “Croson” study, but “[uJnder the new

ordinances, al! bidders are unquestionably permitted to

compete for [all] city contracting ... .” Memorandum in

Support of Respondents’ Motion to Dismiss as Moot, at 8-

9, 11. As a result, the purported outright bar against non-

minority contractors competing for “set-asides” and the lack

of a study documenting the appropriateness of an MBE

program, the twin foundations of Petitioner's legal challenge,

no longer are components of Jacksonville law or at issue

in this case.

Thus, this Court is presented with circumstances not unlike

those in Princeton University v. Schmid, 455 U.S. 100, 103

(1982) (per curiam):

... the regulation at issue is no longer in force.

Furthermore, the lower court’s opinion was careful

not to pass on the validity of the revised regulation

under either the Federal or the State Constitution.

Thus, the issue of the validity of the old regulation

is moot, for this case has “lost its character as

a present, live controversy of the kind that must

exist if we are to avoid advisory opinions on abstract -

questions of law.” Hal/ v. Beals, 396 U.S. 45, 48

(1969) (per curiam).

When a case becomes moot pending appeal, the Court's

custom is to “reverse the judgment below and remand with

a direction to dismiss.” United States v. Munsingwear, 340

U.S. 36, 39 (1950) (footnote omitted). Accord, Duke Power

Company v. Greenwood County, 299 U.S. 259, 267 (1936)

(dismissal of case that becomes moot pending appeal! is the

“duty of the appellate court’).

That the circumstances of this case result in a finding of

moatness was presaged by the Court's opinion in Croson.

in Croson, the plaintiff, unlike Petitioner here, sought

damages in addition to prospective relief. Richmond’s MBE

program expired on June 30, 1988, over three months prior

to argument before the Court and almost seven months prior

to the decision. The Court addressed the issue of mootness

in a footnote, explaining that “[t]he expiration of the ordinance

has not rendered the controversy between the city and

appellee moot. There remains a live controversy between

the parties over whether Richmond's refusal to award

appeliee a contract pursuant to the ordinance was unlawful

and thus entitles appeliee to damages.” Croson, 488 U.S.

at 478 n.1 (citations omitted). Thus, the strong implication

of the preceding passage is that in respect to prospective

relief, the case was moot. Although the chaliengea

Jacksonville ordinances, rather than having expired, have

been repealed, the effect is the same — they no longer exist.

Aithough the plain language of Princeton appears

dispositive on the issue of mootness, a discussion of

mootness in the context of this case would not be complete

without some mention of what may, on first blush, appear

to be a competing line of the Court's cases. For example,

in City of Mesquite v. Aladdin's Castile, Inc., 455 U.S. 283

(1982), a case argued the same day as Princeton and decided

approximately one month later, the Court refused to declare

moot a case in which judicially invalidated legisiation was

repealed while an appeal was pending before the Fifth

Circuit. The Court noted that “[ijt is well settled that a

defendant's voluntary cessation of a challenged practice

does not deprive a federal court of its power to determine

the legality of the practice.” City of Mesquite, 455 U.S. at

289.

But the Court's statement cannot be separated from the

peculiar facts of that case:

In this case the city’s repeal of the objectionable

language would not preclude it from reenacting

precisely the same provision if the District Court's

judgment were vacated (footnote omitted). The city

followed that course with respect to the age

restriction, and then, in obvious response to the

state court's judgment, the exemption was

eliminated. There is no certainty that a similar

course would not be pursued if its most recent

amendment were effective to defeat federal!

jurisdiction.

City of Mesquite, 455 U.S. at 289 (emphasis added). Clearly,

the Court was concerned with acts committed in bad faith

by the defendant in City of Mesquite — manifested not only

by its nistory of repealing and reinstating constitutionally

offensive language in an effort to frustrate judicial

intervention, as noted above, but its “announced

. intention” to reenact the very provision challenged if

the district court's judgment was vacated, id., 455 U.S. at

289 n. 11 — and was determined to prevent the defendant

from engaging further in this questionable conduct.

In the case at bar, there is no evidence or history to indicate

that Jacksonville changed its law in an effort to thwart federal

jurisdiction. Unlike Mesquite, Jacksonville did not merely

delete some language from its law, but replaced that law.

Certainly, there is nothing in Jacksonville's conduct to

suggest that if this case is dismissed as moot that it wil!

reenact its old MBE program. And it cannot be ignored that

unlike the defendant in City of Mesquite, Jacksonville

changed its law after receiving a favorab/e judicial decision.

Moreover, the Court in City of Mesquite framed the

mootness inquiry as follows:

A question of mootness is raised by the revision

of the ordinance that became effective while the

case was pending in the Court of Appeals. When

that court decided that the term “connections with

criminal elements” was unconstitutionally vague,

that language was no longer a part of the ordinance.

Arguably, if the court had been fully advised, it

would have regarded the vagueness issue as moot.

lt is clear to us, however, that it was under no duty

to do so.

City of Mesquite, 555 U.S. at 288. The Court's choice of

language seems to indicate that wnile the court of appeals

had no duty to declare the case moot, neither was it

pronibited from doing so. Thus, because of the specific

circumstances of City of Mesquite and the fact that it was

decided so closely on the heels of Princeton, it is unlikely

that the Court in City of Mesquite was repudiating the holding

or logic of Princeton as a general proposition of law. Indeed,

if the rule in City of Mesquite was subject to universal

application, the Court in Croson undoubtedly would have

relied on it, rather than explaining that Croson was not moot

because of the remaining issue of damages.

Although the Eleventh Circuit based its decision on

Petitioner's lack of standing rather than mootness, it

nevertheless dismissed the case without prejudice which,

under the current circumstances, was the correct result. This

Court may, therefore, affirm the judgment of the court of

appeals. See Board of Airport Commissioners of the City

of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 572

(1987) (“We granted certiorari .. . and now affirm, but on

different grounds.”).

B. At The Very Least, The Judgment

Should Be Vacated And The Case

Remanded For Additional Proceedings.

Of course, rather than dismissing the case on grounds

of mootness, this Court could vacate the judgment and

remand the case to permit Petitioner, if it so chooses, to

amend its complaint in order to mount a challenge to the

new Jacksonville ordinances. This was the approach

selected by the Court in Fusari v. Steinberg, 419 U.S. 379

(1975).

Fusari involved a Connecticut law that underwent major

revisions between the time the Court noted probable

jurisdiction and the time allotted for briefing on the merits.

Because of these revisions, the Court concluded that it was

“unable meaningfuily to assess the issues in this appeal on

the present record.’ Fusari, 419 U.S. at 387. Rather than

declaring the case moot, the Court vacated the judgment

below and “remanded for reconsideration in light of the

intervening changes in Connecticut law.” /d. at 390.

The Court followed a similar course in Diffenderfer v.

Central Baptist Church, 404 U.S. 412 (1972) (per curiam).

in Diffenderfer, the plaintiff challenged on First Amendment

grounds a Florida statute which exempted completely from

state taxation a church-owned parking lot utilized for both

church and commercial purposes. A three-judge district

court upheld the statute and an appeal! was taken. By the

time the dispute reached the Court, however, the Florida

statute involved had been repealed and replaced with

different legislation.

On review, the Court, as an initial matter, noted that it

“must review the judgment of the District Court in light of

Florida law as it now stands, not as it stood when the

judgment below was entered.” Diffenderfer, 409 U.S. at 414.

Next, the Court concluded that the case was not one “capable

of repetition, yet evading review ..., nor is it the kind of

case that may produce irreparable injury if not decided

immediately,” id, because

the only relief sought in the complaint was a

declaratory jUdgmient that the now repealed Fila.

Stat. § 192.06(4) is unconstitutional as applied to

a church parking lot used for commercial purposes

and an injunction against its application to said

lot. This relief is, of course, inappropriate now that

the statute has been repealed.

Diffenderfer, 409 U.S. at 414-15. Rather than dismissing this

case as moot, pursuant to Munsingwear, the Court,

“[bjecause it is possible that appellants may wish to amend

their complaint so as to demonstrate that the repealed statute

retains some continuing force or to attack the newly enacted

legislation,” vacated the judgment and remanded “with leave

to the appellants to amend their pleadings.” Diffenderfer, 404

U.S. at 415.

Regardiess of whether this case is dismissed on grounds

of mootness, as in Munsingwear and Princeton, or the

judgment is vacated and remanded with additional

instructions, as in Fusari and Diffenderfer, the point is that

the case is not in the proper posture for this Court to review.

In short, no purpose is served by determining whether

Petitioner has standing to challenge a legislative scheme

that no longer exists.

Moreover, this Court should not be placed in the position

of having to evaluate, for purposes of establishing Petitioner's

standing to sue, the relevant differences between the old

and new law, not as a court of ultimate review, but as a

court of original jurisdiction. That is exactly the role this Court

will be forced to play, however, if it attempts to determine

on the record before it whether or not Petitioner has standing

to challenge the new Jacksonville MBE program.

Neither the district court nor the court of appea!s has had

an opportunity to evaluate Petitioner's standing under the

current Jacksonville law. This Court should give those courts

the opportunity to perform their traditiona! role, while at the

same time, relieving itself of the obligation of doing the lower

courts’ work for them.

ll. THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT PETITIONER LACKS

STANDING TO CHALLENGE JACKSONVILLE’S

MBE PROGRAM

if this Court determines, however, that it is appropriate

to address the standing question, it must, as a preliminary

matter, heed a previously discussed rule from Diffenderfer:

“This Court must review the judgment of the [court below]

in light of [Jacksonville] law as it now stands, not as it stood

10

when the judgment was entered.” /d., 404 U.S. at 414. This

means the new Jacksonville ordinances, not the repealed

versions, must provide the framework for this Court's

decision.

A. MBE Programs Are Important Too!s

For Eradicating Documented

Discrimination. An Associationa!

Plaintiff Must, Therefore, Plead

Sufficient Facts To Demonstrate its

Standing To Sue.

States and municipalities are authorized to “eradicate

racial discrimination and its effects in both the public and

private sectors, and the absolute duty to do so where those

wrongs were Caused intentionally by the [government] itself.”

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989)

(Kennedy, J., concurring). Toward that end, government at

all levels has a compelling interest in “assuring that public

dollars, drawn from the tax contributions of ai! citizens, do

not serve to finance the evi! of private prejudice.” Croson,

488 U.S. at 492.

In order to further this compelling interest, a state or

municipality, provided it can demonstrate the existence of

prior discrimination, may develop remedial procedures in

respect to the award of public contracts, including the

institution of MBE programs. See id. at 504. MBE programs

by their nature, are designed to facilitate the award of

government contracts to minority businesses. Businesses

operated by individuals who are not “minorities” within the

meaning of the MBE statutory scheme, therefore, will be

excluded to some extent from participating in the MBE

program.

Because MBE programs can serve as useful weapons in

any state or municipality’s arsenal! for eliminating

discrimination, any challenge to their constitutionality must

unmistakably satisfy the “case or controversy” requirements

of Article lil. This is particularly true when the party raising

the constitutional challenge is an association that has

11

suffered no injury itself and sues merely in a representative

Capacity.

As a result, in order for such an association to demonstrate

it has standing to challenge the constitutionality of an MBE

program, it must recite in its complaint more than the obvious

— that unidentified non-minority members of the

organization have been or may be preciuded from competing

for equally unidentified government contracts because of

the operation of the MBE legislation — and must, at a

minimum, identify in its complaint particular contracts that

specific members were prohibited from competing for

because of the requirements of the MBE program. See Warth

v. Seldin, 422 U.S. 490, 516 (1975) (“complaint refers to no

specific project of any of [association's] members that is

currently preciuded ...") ; see a/so Lujan v. Defenders of

Wildlife, _.. U.S. _-_. , 112 S.Ct. 2130, 2138 (1992) (" ‘some

day’ intentions . . . [of association's members] without any

description of concrete plans” not enough to establish

standing). A less demanding pleading requirement will serve

only to justify purely speculative allegations concerning

predicted conduct of unspecified association members,

expose MBE programs to frivolous lawsuits, and strain the

legal resources of states and political subdivisions.

B. The Judgment Below Was Mandated

By This Court's Prior Cases On

Standing.

Amici States agree with Petitioner that the Eleventh

Circuit’s position regarding standing is too restrictive. In the

appellate court's defense, however, it may well be that it was

troubled by Petitioner's “bare-bones” complaint, a complaint

that did nothing more than describe the purpose and effect

of many MBE programs.

Nevertheless, we agree that the court of appeals’ reliance

on a test predicating standing on an ability to demonstrate

that but for the MBE program, one of Petitioner's non-minority

members would have been awarded a specific contract, is

not supported by the Court's cases discussing standing. See,

12

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

(1978), and Village of Arlington Heights v. Metropolitan

Housing Development Corporation, 429 U.S. 252 (1977).

Consistent with those cases, the proper standard for

evaluating Petitioner's standing is interference with a specific

member's right “to compete.” Bakke, 438 U.S. at 280 n.14.

There is no requirement that a plaintiff demonstrate that the

only impediment to the award of a particular contract was

the existence of an MBE program. See id.

It does not follow, however, that the judgment below should

be reversed. It still must be asked what allegations are

sufficient to demonstrate Petitioner has standing to sue within

the context of this specific controversy:

Determining standing in a particular case may be

facilitated by clarifying principles or even clear

rules developed in prior cases. Typically, however,

the standing inquiry requires careful judicial

examination of a complaint’s allegations to

determine whether the particular plaintiff is entitled

to an adjudication of the particular claims asserted.

Allen v. Wright, 468 U. S. 737, 753 (1984).

Often “the standing question can be answered chiefly by

comparing the allegations of the particular complaint to those

made in prior standing cases.” /d. at 751 (citations omitted).

An excellent basis for comparison to the complaint in this

case is the complaint in Warth v. Sel/din, 422 U.S. 490 (1975),

a case that addressed directly the standing of an association.

In Warth, the petitioners sought declaratory and injunctive

relief and damages from the town of Penfield, New York,

claiming the town’s zoning ordinance, on its face and as

applied, prevented the construction of low-and-moderate

income housing. The district court dismissed the complaint

and denied motions to intervene filed by two associations.

The Second Circuit affirmed on the ground that none of

the plaintiffs or the applicants to intervene had standing.

This Court also affirmed on the basis of lack of standing.

13

One of the intevernors, Rochester Home Builders

Association, “an association of firms engaged in residential

construction,” 422 US. at 497, claimed the allegedly

discriminatory zoning ordinance “arbitrarily and capriciously

prevented its member firms from building |low-and-moderate-

cost housing in Penfield, and thereby .. . deprived them

of potential profits.” 422 U.S. at 492. The Court, after rejecting

Home Builders’ claim for damages, turned its attention to

the association's request for declaratory judgment and

injunctive relief and noted the following:

Home Builders’ prayer for prospective relief fails

for a different reason .... The complaint refers

to no specific project of any of its members that

is Currently precluded either by the ordinance or

by respondents’ action in enforcing it. There is no

averment that any member has applied to

respondents for a building permit or a variance with

respect to any current project. indeed, there is no

indication that respondents have delayed or

thwarted any project currently proposed by Home

Builders’ members, or that any of its members has

taken advantage of the remedia! processes

available under the ordinance. In short, insofar as

the complaint seeks prospective relief, Home

Builders has failed to show the existence of any

injury to its members of sufficient immediacy and

ripeness to warrant judicial intervention.

Warth, 422 U.S. at 516.

The Court's analysis in Warth easily can be applied to

the case at bar. Petitioner's complaint “refers to no specific

project” upon which any of its members have been prevented

from bidding because it was set aside exclusively for minority

businesses. Petitioner's complaint also fails to identify any

bid submitted and rejected for consideration because of the

requirements of Jacksonville's MBE program. And,

Petitioner's complaint does not contain an allegation that

any of its members submitted bids for a specific project and

attempted unsuccessfully to qualify under any available

14

exception to the application of the law. Petitioner did plead

that “numerous ro n-minority members of Plaintiff nave been

deprived of substantial economic and business

opportunities,” but that is no more sufficient to establish

standing than it was for Home Builders to plead in its

complaint in Warth that its members were “deprived of

potentia’ profits.”

The seminal Bakke case provides another good

comparison. In Bakke, a white applicant for admission to

the University of California at Davis's medica! schoo!

challenged the medica! school's special admissions program

for minorities. The program reserved sixteen of the 100

available seats in the first year class for minority students

whose academic credentials did not satisfy the usua!

admission requirements. Bakke, who failed to secure

admission through the traditional admissions process, had

academic qualifications superior to those required of

candidates for the special admissions program

Although standing was not the focus of the Court's inquiry

in Bakke, it nevertheless was addressed. According to the

Court, Bakke's standing was not dependent on his ability

to “prove that he would have been admitted in the absence

of the specia! program.” Bakke, 438 U.S. at 281 n.14. instead,

Bakke was injured by “the University’s decision not to permit

him to compete for al! 100 places in class, simply because

of his race.” /d.

it is instructive to examine Bakke's complaint to identify

the steps Bakke took in his own behalf and the conduct

of the University that placed him in position to sue. First,

Bakke selected a specific medical schoo! to which he sought

admission. Second, he then actually applied for admission.

This, of course, required him to complete al! necessary

paperwork and submit it for consideration. Finally, his

application for admission was rejected. Thus, while Bakke

was not required to demonstrate that his exciusion from

medical schoo! was a direct result of the operation of the

special admissions program, he actually had applied for

admission prior to complaining that the special admissions

15

program prohibited him and others like him from being

considered for admission.

In stark contrast stands the complaint of Petitioner. It does

not identify a specific member or members who have been

denied the opportunity to compete. It does not identify any

paticular contract of interest to any of its members. It does

not indicate that any of its members submitted bids for any

of the projects subject to Jacksonville's MBE law. And, in

light of the changes in Jacksonville's MBE program, it does

not plead with any particularity whatsoever how the new

law, on its face, preciudes any of its members from submitting

bids and competing for particular projects. In short,

Petitioner's complaint is bereft of any of the allegations or

reference to the circumstances that distinguished the

complaint in Bakke.

The Court's wisdom expressed in A//en, that a dispute over

standing can best be reso!ved by comparing complaints from

earlier standing cases to the complaint at issue, is compelling

here. Indeed, when compared to the complaints in Warth

and Bakke, Petitioner's complaint is woefully inadequate and

fails to establish standing under either the old or new

Jacksonville legislative scheme. Petitioner's complaint

resembles the flawed complaint submitted by Home Builders

in Warth much more than it resembies the complaint in Bakke.

Under the circumstances, it deserves to suffer the same fate

as Home Builders’ complaint.

C. The Formulation For Standing

Offered By Amici States Ohio And

Michigan Best Serves Public Policy.

Three competing rules for establishing standing have been

presented for this Court's consideration — the rule forming

the basis of the Eleventh Circuit's decision, the rule proposed

by Petitioner, and the rule that Amici States urge this Court

to adopt. Of the three, only the last, as discussed above,

comports with this Court's precedents. Only the last strikes

the proper balance between assuring litigants that the doors

to the courthouse wil! remain open and removing those doors

16

from their hinges.

On one hand, the Eleventh Circuit's rule is unduly

restrictive. Its adoption by this Court will place a severe

burden on any associationa! plaintiff seeking to vindicate

its members rights to equal opportunity.

On the other hand, judgment for Petitioner will dramatically

reduce the effectiveness of a motion to dismiss as a

mechanism for challenging the standing of an association

acting in nothing more than a representative capacity. The

association wil! be under no obligation whatsoever, prior

to initiating suit, to obtain the sort of information concerning

its members business relations with a government entity

that is within its, or its members’, possession. Petitioner's

rule also will encourage such an association to initiate suit

attacking significant social legisiation without first

establishing that any of its members have been injured in

a particularized fashion sufficient to invoke federa!

jurisdiction and present a federa! court with a concrete case

or controversy. See Defenders of Wildlife, 112 S.Ct. at 2138

(association's members must establish “continuing, present

adverse effects” in order to obtain injunctive relief) (citations

omitted).

if MBE programs are to function as intended, designating

a small percentage of government contracts for minority

businesses in order to remedy past discrimination, it goes

without saying that non-minority contractors may be

ineligible for those contracts. And while government snould

never be permitted, without justification, to exclude non-

minority contractors irom the competition for public

contracts, neither should the importance of MBE programs

be slighted by permitting Petitioner to proceed under the

improper and relaxed standing requirements it proposes.

17

CONCLUSION

The judgment of the Eleventh Circuit should be affirmed

or, in the alternative, the judgment should be vacated and

the case remanded with instructions to permit Petitioner to

amend its complaint.

Respectfully submitted,

FRANK J. KELLEY LEE FISHER

Attorney Genera! of Attorney General of Ohio

Michigan

P.O. Box 30212 ANDREW |. SUTTER

Lansing, Michigan 48909 (Counsel of Record)

(517) 373-1124 Assistant Attorney Genera!

; Chief Counsel's Staff

30 East Broad Street, 15th Floor

Columbus, Ohio 43266-0410

(614) 466-2872

Counsel for Amici States of Ohio and Michigan

January 1993

Filed Jun 20 1974

Laurence P. Henigan, Clerk

By William Franas Deputy

In the Superior Court of the State of California,

In and for the County of Yolo

No. 31287

COMPLAINT FOR MANDATORY, INJUNCTIVE, AND

DECLARATORY RELIEF

Allan Bakke,

Petitioner and Plaintiff,

-vSs.-

The Regents of the University of California,

Defendants and Respondents.

FIRST CAUSE OF ACTION

Petitioner and plaintiff ALLAN BAKKE (hereinafter called

plaintiff) alleges for a first cause of action:

That plaintiff is a citizen of the State of California and of

the United States of America.

That defendants and respondents The Regents of the

University of California (nereinafter called defendants) are

public officers of the State of California, maintaining,

operating and administrating the Schoo! of Medicine,

University of California, Davis, Yolo County, California

(nereinafter called said Medica! School), that said Medica!

Schoo! is supported by public funds and tax monies and

A-2

receives federal financial assistance.

WW.

That plaintiff duly and timely filed his applications with

said Medica! Schoo! for admission to the first-year classes

of said Medical Schoo! commencing in September, 1973,

and September 1974; that in each year, respectively, plaintiff

received notification from said Medical Schoo! that his

applications were denied.

IV.

That plaintiff was and is in all respects duly qualified for

admission to said Medica! Schoo! and the sole reason his

applications were rejected was on account of his race, to-

wit, Caucasian or white, and not for reasons applicable to

persons of every race, as follows:

That a special admissions committee composed of racial!

minority members evaluated applications of a special group

of persons purportedly from economic and educationally

disadvantaged backgrounds; that from this group a quota

of 16%, or 16 out of 100 first-year class members, was

selected; that in fact, all applicants admitted to said Medica!

Schoo! as members of this group were members of racial

minorities; that under this admission program racial minority

and majority applicants went through separate segregated

admission procedures with separate standards for

admissions; that the use of such separate standards resulted

in the admission of minority applicants less qualified than

plaintiff and other non-minority applicants who were

-_therefore rejected.

V. :

That by reason of the action of defendants in excluding

plaintiff from the first-year Medical Schoo! class under

defendants’ minority preference admission program, plaintiff

has been invidiously discriminated against on account of

his race in violation of the Equal Protection Clause of the

A-3

Fourteenth Amendment to the United States Constitution,

the Privileges and Immunities Clause of the California

Constitution (Art. 1, sec. 21), and the Federal Civil Rights

Act (42 U.S.C. sec. 200(d).).

Vi.

That plaintiff has no plain, speedy or adequate remedy

at law.

SECOND CAUSE OF ACTION

Plaintiff alleges for a second cause of action:

I.

Plaintiff realleges and incorporates herein by reference

each and every allegation contained in Paragraphs | through

VI of his first cause of action set forth above.

il.

-

That plaintiff will suffer substantial and irreparable harm

by reason of the continued refusal of defendants to admit

him to said Medical School.

THIRD CAUSE OF ACTION

Plaintiff alleges for a third cause of action:

I.

Plaintiff realleges and incorporates herein by reference

each and every allegation contained in Paragraphs | through

VI of his first cause of action set forth above.

iI.

That a bonafide and genuine dispute exists between

Plaintiff, on the one hand, and, defendants, on the other

hand, as to plaintiffs right to be admitted to said Medical

-

School.

WHEREFORE, plaintiff prays:

1. That this Court issue its alternate writ of mandate

directing defendants to admit plaintiff to said Medical School,

or to appear before the above entitled Court and show cause

why said admission to said Medical Schoo! may be denied

plaintiff.

2. That the above entitled Court issue its order directing

defendants to appear and show cause why they should not

be enjoined during the pendency of this action and

permanently from denying plaintiff admission to said Medical

School.

3. That this Court enter its judgment declaring that plaintiff

is entitled to admission to said Medical School; and, further

declaring, that defendants are lawfully obligated to admit

plaintiff to said Medical School.

4. For such other and further relief as to this Court may

seem proper.

JACOBS, BLANKENBURG, MAY & COLVIN

By Reynold H. Colvin

Attorneys for Plaintiff