New Life to California Affirmative-Action Fight

     SACRAMENTO (CN) - Affirmative-action foe Ward Connerly can resurrect claims regarding those who redrew California's legislative districts, a state appeals court ruled Wednesday.
     After Golden State voters approved changes in 2008 and 2010 to how voting districts are drawn, the state auditor set out to select candidates for the newly created California Citizens Redistricting Commission. Political affiliation drives selection of the first eight commissioners who then pick six more colleagues to reflect the state's diversity. There is no specific ratio or formula for the latter nominations.
     Connerly and the American Civil Rights Foundation sued, complaining that the process violated a 1996 voter-approved initiative that bans affirmative-action hiring in government institutions. Specifically, Connerly and the foundation said that applicants to the redistricting commission were considered based on race, ethnicity and gender throughout the entire process.
     The state objected to Connerly's action, arguing that Prop. 209 applied only to public employees and not to public officers like the redistricting commission. Sacramento County Superior Court Judge Michael Kenny agreed and dismissed Connerly's action.
     Advancing a new legal argument on appeal to the Third Appellate District, Connerly said he should be allowed to amend his action to tackle the alleged violations of the federal equal-protection clause in the selection process.
     While the state bristled at Connerly raising new arguments at this juncture, the appellate panel noted Wednesday that a "counterintuitive quirk of California appellate law" allows Connerly to propose new legal theories to show that the complaint can be amended.
     Dismissing the complaint outright amounted to an abuse of discretion by the trial court, according to the ruling, which takes the state to task for not even addressing Connerly's brief.
     The panel refused to believe that Connerly purposely avoided the equal-protection issue for tactical reasons.
     "All complaints are drafted for 'tactical' reasons, that is, to achieve the greatest relief for the client most efficiently," Judge Elena Duarte wrote for a three-member panel. "The fact that the instant complaint was found wanting raises precisely the circumstance the quirk in appellate law was designed to address - to give the plaintiff a final opportunity to propose new facts or legal theories to establish a cause of action. Here, unlike in the authority cited to us, Connerly's proposed new theory is not inconsistent with his existing complaint."
     California also failed to show that Connerly's claims fail as a matter of law, the panel found, noting that the authority used to support that assertion involved school admissions processes, not government hiring.
     "Thus, from the parties' briefing, it appears Connerly can plead at least a prima facie case of equal protection violations," Duarte wrote. "The answer is to allow Connerly to amend the complaint again to clarify his new theories, and give respondents the chance to defend the commission's selection provisions to try to show they comport with federal equal protection principles."