Appeals Court Ends Hiring Preferences for State Jobs

SACRAMENTO —  In a harbinger of future affirmative action cases, a California appellate court citing Proposition 209 struck down a regulation that gave women and minorities preference in state hiring.

The ruling was the first by a state District Court of Appeal applying voter-approved Proposition 209 to regulations granting such hiring preferences in California.

Aides to Gov. Pete Wilson, a strong supporter of the anti-affirmative-action measure, hailed the decision and said it will serve as a precedent for the main lawsuit by the governor attacking other such statutes. That case will be heard later this year.

The decision comes a week after Wilson, freed by a separate federal appellate court decision, issued an executive order abolishing a state program that had funneled billions of dollars in state contracts to companies owned by minorities and women.

A three-judge panel unanimously ruled that a Department of Fish and Game hiring regulation approved by the State Personnel Board violated Proposition 209. The 1996 initiative created a state constitutional amendment to end the use of race and gender to determine hiring, contracting and college admissions by state and local government.

“This clear language [in the initiative] allows no room for discretionary, preferential programs,” Justice Robert Puglia wrote in a 38-page decision. “Nor can there be any dispute that the clear intent of the voters was to outlaw preferential programs.”

Anthony Caso, lawyer for Pacific Legal Foundation, which brought the suit on behalf of two men, Edward Swiden and William Kidd, who were passed over for state jobs in favor of lower-scoring minority and women applicants, said the ruling came as little surprise. He noted that courts will be applying the initiative to many state statutes and local ordinances in coming years.

“We have to get these rulings before we can get the practices changed,” Caso said.

Proponents of affirmative action were critical of Friday’s ruling. State Sen. Hilda Solis (D-El Monte), chairwoman of the Senate Industrial Relations Committee, called the decision a “negative blow” against women and minorities.

“There’s an alarm going off,” Solis said. “We in the Legislature still have oversight responsibilities, especially as they involve contracting out and hiring, and we’ll be taking a look at them.”

The case has its roots in 1977, when the Legislature enacted laws to require affirmative action in state hiring, and directed the State Personnel Board to increase the number of women and minorities in state jobs.

In 1981, the board found a significant lack of women and minorities in agencies overseeing fisheries, wildlife and water quality.

To remedy the situation, the Department of Fish and Game agreed that 60% of its new hires would be women and minorities, even if they scored lower on tests than men and whites.

In 1989, as the case was pending, the State Personnel Board suspended the department’s hiring plan. A Sacramento County Superior Court dismissed the case, leading to the appeal.

As the case languished in the appellate court, voters approved Proposition 209.

The justices concluded that because the hiring rule was never actually repealed, they could decide the case.

The court said the preferential hiring plan violated not only Proposition 209, but also a decades-old state constitutional provision that requires state jobs to be given on the basis of merit.

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Times staff writers Carl Ingram and Mark Gladstone contributed to this story.