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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 656

## Text

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RESPONDENTS REPEALED THE LEGIS-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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0268%3A15. Public record. Not legal advice.